Transforming Public Services: Complaints, Redress …webarchive.nationalarchives.gov.uk/+/http:/ · enable the individual decision-makers to ... 1.12 In May 2000 the then Lord Chancellor,

Transforming Public Services:Complaints, Redress and Tribunals

Presented to Parliament by the Secretary of State for Constitutional Affairs and Lord Chancellor by Command of Her Majesty

July 2004

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Transforming Public Services: Complaints, Redress and Tribunals

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Foreword

The Department for Constitutional Affairs was created to drive forward thereform and improvement of the justice system, to deliver better services forthe public and to reform and safeguard the constitution so that it serves thepublic effectively. It is our task to ensure that the faith the public have ingovernment is improved. Few things matter more to people than their abilityto obtain justice in their dealings with the State and in their workplace but,as this White Paper shows, the institutions which are there to safeguard justicein administration and in the workplace lack systematic design and are poorlyorganised. This White Paper takes forward the proposals for the reform ofTribunals set out in Sir Andrew Leggatt’s Report. Tribunals matter. More peoplego to tribunals than go to court and for many they may be their only contactwith the justice system.

But this White Paper goes wider than this. The public do not want to go to aTribunal, they want their complaint or dispute resolved quickly and fairly. TheWhite Paper therefore looks at the whole issue of dispute resolution betweencitizen and State and in the workplace and explores how better to deliverresolution and fairness as part of our public sector reform programme.

This White Paper deliberately takes a bold approach. It explains the context inwhich we seek reform. It sets out what we believe we should seek to achieve.And it is an invitation to all those involved in redress – judges, officials, lawyers,advice workers – to work together to create a new organisation and a newapproach which genuinely meets the community’s needs.

The Right Honourable The Lord Falconer of Thoroton Secretary of State for Constitutional Affairs and Lord Chancellor


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Contents

1 Introduction 3

2 Proportionate Dispute Resolution 6

3 The Administrative Justice Landscape 9

4 The Development of Ombudsman Services 16

5 Tribunals: The Service Today 20

6 Resolving Disputes: A New Approach 25

7 Procedure and Processes 39

8 Employment Tribunals and the Employment Appeal Tribunal 44

9 Tax Appeals 46

10 Supporting the User 48

11 An Administrative Justice Council 52

12 The Route to a New System 55

Annexes

A Adjudicator and Independent Case Examiner 58

B BIOA Members 59

C Central Government Tribunals 60

D Housing Adjudication 61


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1.1 This White Paper is about improvingpublic services and improving access tojustice – administrative justice and justicein the workplace.

Administrative justice

1.2 A modern democratic state affectsthe lives of individuals in many ways. Itintervenes to protect the vulnerable and toregulate markets. And there are areas whereit has to deal directly with the rights andobligations of individuals and businesses,areas which can affect any of us, such astaxation, benefits and immigration status.

1.3 In a democracy the framework withinwhich we all live is set by democraticinstitutions acting in the public interest.But where State institutions do not just seta framework but make decisions about therights and obligations of individuals, the Statealso has an important duty towards thatindividual. Central, devolved and localgovernment make millions of such decisionsevery year. What if government gets it wrong?What if the individual feels aggrieved by thedecision? What if the individual does notrealise that government has got it wrong?Each of us has the right to expect that Stateinstitutions will make the right decisionsabout our individual circumstances.

1.4 The overwhelming majority of thesedecisions are taken by public officials, usuallyoperating as part of a government departmentor State agency. Their job is to get thosedecisions about individuals right. The job ofthose who organise and lead departments

and agencies is to establish, maintain andconstantly improve the systems which willenable the individual decision-makers toget the decisions right.

1.5 No system will ever be perfect. Therewill always be errors and complaints. Therewill always be uncertainties about how thelaw should be applied to the circumstancesof individuals. There will often be gaps inknowledge and understanding about anindividual’s circumstances. We are all entitledto receive correct decisions on our personalcircumstances; where a mistake occurs we areentitled to complain and to have the mistakeput right with the minimum of difficulty; wherethere is uncertainty we are entitled to expecta quick resolution of the issue; and we areentitled to expect that where things have gonewrong the system will learn from the problemand will do better in the future.

1.6 This is the sphere of administrativejustice. It embraces not just courts andtribunals but the millions of decisions takenby thousands of civil servants and otherofficials. So, while much of this White Paperis about institutions which provide redressto individuals who seek to reverse a decision,from the point of view of a user or potentialuser the context is much broader.

1.7 A good service delivery organisationmust be designed with these legitimate needsof the users in mind. To make this a reality thesystem has to have the following features:

• the decision-making system must bedesigned to minimise errors and uncertainty;

1 Introduction

“We have reached a crucial stage in the reform of Britain’s public services.Together we are working to ensure that we can provide services which arenot only universal, but also genuinely treat people as individuals, offeringthem the choice and quality of service they have the right to expect.”

Tony Blair, from the foreword to Leading from the Front Line1

1 Published by the Office of Public Service Reform, October 2003. www.pm.gov.uk


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• the individual must be able to detect whensomething has gone wrong;

• the process for putting things right orremoving uncertainty must be proportionate– that is, there should be nodisproportionate barriers to users in termsof cost, speed or complexity, butmisconceived or trivial complaints shouldbe identified and rooted out quickly;

• those with the power to correct a decisionget things right; and

• changes feed back into the decisionmaking system so that there is less errorand uncertainty in the future;

1.8 Despite significant improvements ina range of tribunals and departments theGovernment does not believe that set againstthese standards the existing systems forredress provided by central government areas successful as they could or should be.This is further explored in Chapters 3 to 5.We believe that as part of public sector reformthe public is entitled to a better service.

Justice in the workplace

1.9 In the modern world of work, employeesare entitled to fair and decent standards in theworkplace. They are entitled to protectionagainst unfair dismissal and discrimination.Their rights to a minimum wage, to maternityleave and to join a trade union have to beprotected. It is the duty of the State to putin place machinery to enforce these rightsand to provide ways in which employees andemployers can resolve any disputes about them.

1.10 Many of these disputes can besuccessfully resolved in the workplace,through formal and informal means. This is byfar the best way of resolving these disputes.Where this is not successful there can beassistance from mediation services and theAdvisory Conciliation and Arbitration Service(Acas) who successfully conciliate some 70%of employment tribunal claims. But ultimatelythere may have to be a judicial determination.This is the role of the employment tribunalsystem, which needs to be:

• even-handed and responsive to theneeds of its users;

• accessible and understandable;

• as fast as reasonably practicable;

• reliable, consistent and dependable; and

• properly resourced and organised in anaccountable fashion.

1.11 Disputes over justice in the workplacediffer from administrative justice disputesbecause they are party vs party rather thanindividual or business vs State. Theirseparate requirements are considered atmore length in Chapter 8. But there is acommon aim: justice.

The Leggatt Review and beyond

1.12 In May 2000 the then Lord Chancellor,Lord Irvine of Lairg, appointed Sir AndrewLeggatt to undertake a review of one part ofthe justice landscape, the web of tribunalswhich has grown up over the years primarilyto provide a right of appeal against certaindecisions by State agencies but also to dealwith employment issues and some otherdisputes. His report – Tribunals for Users –One System, One Service – was publishedin August 2001 and gave a picture of anincoherent and inefficient set of institutionswhich, despite the efforts of the thousandsof people who work in tribunals, provideda service to the public which was well shortof what people are entitled to expect andwhat can be achieved. Sir Andrew set outa convincing case for change and this WhitePaper acts as a response to his report. Butwe do not believe that tribunal reform can orshould stand alone. What matters to peopleis the quality and responsiveness of thesystem as a whole. So this White Paper isalso about improving the whole end to endprocess for administrative justice. This hasimportant implications for the unified tribunalsystem which he recommended, and ourvision for that system is therefore differentfrom, but, we believe, compatible with his.

1.13 The Department for ConstitutionalAffairs’ five year strategy is organised aroundfour key elements:


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• developing policies that help empowercitizens and communities to manage theirown problems, protecting them from crimeand anti-social behaviour, and narrowingthe justice gap;

• moving out of courts and tribunalsdisputes that could be resolved elsewhere through better use ofeducation, information, advice andproportionate dispute resolution;

• changing radically the way we deliverservices so that the courts, tribunals, legalservices and constitutional arrangementsare fit for purpose and cost effective; and

• re-shaping the DCA’s organisation and infrastructure so that it is alignedstructurally to meet the needs of the publicand works well with the rest of government.

1.14 This White Paper illustrates theapplication of this strategy and the principlesof public service reform to administrativejustice and to justice in the workplace. Allstrands are represented. It is not just aboutorganisation. We accept Sir Andrew Leggatt’skey recommendation that tribunals providedby central government should be broughttogether into a unified system within whatis now the Department for ConstitutionalAffairs. We believe that this will be moreeffective and efficient, and will firmly embedthe principle of independence. But we seethis new body as much more than afederation of existing tribunals. This is a neworganisation and a new type of organisation.It will have two central pillars: administrativejustice appeals, and employment cases. Itstask, together with a transformed Council onTribunals, will not be just to process casesaccording to law. Its mission will be to helpto prevent and resolve disputes, using anyappropriate method and working with itspartners in and out of government, and tohelp to improve administrative justice andjustice in the workplace, so that the needfor disputes is reduced.

1.15 In the remainder of this White Paperwe set out, in the context of DCA’s five yearstrategy, what government needs to do inorder to improve services, how we are creatingthe new, unified organisation covering theexisting work of tribunals, how we see thatorganisation working and where we wouldhope to be at the end of that five year period.


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2.1 The proposals set out in this White Paperare a major early step in the wider strategy we are developing to transform civil andadministrative justice and the way that peopledeal with legal problems and disputes.

2.2 Our strategy turns on its head theDepartment’s traditional emphasis first oncourts, judges and court procedure, andsecond on legal aid to pay mainly for litigationlawyers. It starts instead with the real worldproblems people face. The aim is to developa range of policies and services that, so far aspossible, will help people to avoid problemsand legal disputes in the first place; andwhere they cannot, provides tailored solutionsto resolve the dispute as quickly and cost-effectively as possible. It can be summed upas ‘Proportionate Dispute Resolution’.

2.3 We want to:

• minimise the risk of people facing legalproblems by ensuring that the framework oflaw defining people’s rights and responsibilitiesis as fair, simple and clear as possible, andthat State agencies, administering systemslike tax and benefits, make better decisionsand give clearer explanations;

• improve people’s understanding of theirrights and responsibilities, and theinformation available to them about whatthey can do and where they can go forhelp when problems do arise. This will helppeople to decide how to deal with theproblem themselves if they can, andensure they get the advice and otherservices they need if they cannot;

• ensure that people have ready access toearly and appropriate advice and assistancewhen they need it, so that problems can besolved and potential disputes nipped in thebud long before they escalate into formallegal proceedings;

• promote the development of a range oftailored dispute resolution services, so thatdifferent types of dispute can be resolvedfairly, quickly, efficiently and effectively,

without recourse to the expense andformality of courts and tribunals where this is not necessary;

• but also deliver cost-effective court andtribunal services, that are better targeted on those cases where a hearing is the best option for resolving the dispute orenforcing the outcome.

2.4 ‘Civil and administrative justice’ covers a very wide and varied range of issues andproblems. And at the core of our vision is the idea that policies and services must betailored to the particular needs of people indifferent contexts, moving away from thelimited flexibility of the existing court and legal aid systems. Much of this White Paper is about realising that vision in the field ofadministrative justice. But other major areaswill each in turn need to be the subject ofdetailed analysis and research in order todevelop specific proposals. We are currentlyconsidering the areas of debt and domesticviolence and hope to publish consultationpapers later this year. And the LawCommission will be looking at housingadjudication issues in a similar way.

2.5 All these analyses will start by considering:

• the types of problems and disputes peopleface, and what outcomes they want to achieve;

• the various options available to avoid orresolve disputes; and

• the effectiveness of different disputeresolution options in addressing peoples’needs, particularly identifying any gaps in their provision.

What do people want?

2.6 The outcome that people are looking forwill vary considerably from case to case andperson to person. A key question will be theextent to which people are looking (just) fora legal remedy, like an award of a disabilitybenefit. Or whether they might really beseeking something else, like an apology or a clear explanation.

2 Proportionate Dispute Resolution


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2.7 It is also important to consider whatpeople want in terms of the processes theygo through. This may well involve striking abalance between competing factors. Mostpeople seem likely to want the process tobe quick, cheap, simple and stress-free,but they may also want it to be rigorous,authoritative and final. Some may preferan informal process where the disputeis resolved consensually. For some, animportant consideration may be that theproceedings remain private.

What dispute resolution options are there?

2.8 The existing landscape of disputeresolution options is confused and confusing,with many variations in name, style andtechnique. A clear and simple analyticalframework is an essential starting point. Again, it is helpful to distinguish outcomeand process.

2.9 At the simplest level, there are just twopossible outcomes. A dispute resolutionprocess separate from the original decision-maker may produce a decision that is bindingon the parties whether they like it or not orone to which they must first consent. (As avariant, some ombudsmen make decisionsthat are binding on the service provider butnot the complainant). A second importantdistinction is whether both parties must agreeto take part, or whether if one party choosesto use a particular option, the other is requiredto take part.

Participation

2.10 Within each category, there can thenbe a wide range of second-order differencesin the process. So, courts and tribunals doessentially the same things in that they makebinding, final decisions (subject to appeal) onpeople who are required to participate. Thisnecessarily means they are limited to offeringlegal remedies. Some formality of processis required, although hearings in a largeproportion of small claims are relativelyinformal. Tribunals tend to aspire to a moreinquisitorial and less formal approach thancourts, reducing the need for the parties to belegally represented. Tribunals have specialistjurisdictions and most sit in panels, often withnon-lawyer (expert or lay) members; they donot have their own enforcement powers. Mosttribunals do not charge fees or routinely orderthe losing parties to pay winners’ costs.

2.11 There are a number of alternative disputeresolution (ADR) processes:

• adjudication involves an impartial,independent third party hearing the claimsof both sides and issuing a decisionto resolve the dispute. The outcome isdetermined by the adjudicator, not by theparties. Determinations are usually madeon the basis of fairness, and the processused and means of decision-making arenot bound by law. It can involve a hearingor be based on documents only;

• arbitration involves an impartial,independent third party hearing theclaims of both sides and issuing a bindingdecision to resolve the dispute. Theoutcome is determined by the arbitrator,is final and legally binding, with limitedgrounds for appeal. It requires both parties’willing and informed consent to participate.It can involve a hearing or be based ondocuments only;

• conciliation involves an impartial third partyhelping the parties to resolve their dispute byhearing both sides and offering an opinionon settlement. It requires both parties’ willingand informed consent to participate. Theparties determine the outcome, usually withadvice from the conciliator. An example isAcas conciliation;

Participation

Compulsory Not Compulsory

Binding Courts/ ArbitrationTribunals

Not Binding Assisted Settlement

Dec

isio

ns


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• early neutral evaluation involves anindependent person assessing the claimsmade by each side and giving an opinion on (a) the likely outcome in court or tribunal,(b) a fair outcome, and/or (c) a technical orlegal point. It is non-binding, and the partiesdecide how to use the opinion in theirnegotiations. It requires both parties’ willingand informed consent to participate. It canbe useful to help moderate a party’sunrealistic claims;

• mediation involves an independent thirdparty helping parties to reach a voluntary,mutually agreed resolution. A key principleis that the parties, not the mediator, decidethe outcome. It requires both parties’ willingand informed consent to participate. Itrequires mediating skills, and it has astructured format;

• negotiation involves dealing directly withthe person or the organisation in dispute.It is non-binding and can be done by theperson in dispute or by a representative(‘assisted negotiation’). The negotiatoris not impartial but instead representsa party’s interests. An example ofnegotiation is settlement discussionsbetween solicitors; and

• ombudsmen are impartial, independent‘referees’ who consider, investigate andresolve complaints about public and privateorganisations. Their decisions are made onthe basis of what is fair and reasonable.They also have a role in influencing goodpractice in complaints handling.

2.12 In practice, participation in mediation andother non-binding options is usually voluntary.But there is no reason in principle why, even ifit is not compulsory, it should not be strongly encouraged in appropriatecircumstances. For example, under the CivilProcedure Rules in England and Wales, courtsare under a duty to encourage the use ofalternative dispute resolution (often mediation)in appropriate cases, and may take account of whether the parties considered this whenmaking case management decisions andordering costs. A pilot at Central LondonCounty Court is automatically referring somecivil cases to mediation, and the parties haveto give the court their reasons if they do notwant to participate. And in most EmploymentTribunal cases, there is a stage in the processin which Acas seeks to find an agreed solutionbefore a hearing in the tribunal is held.

2.13 The next chapter examines the currentadministrative justice landscape in more detail against the background of this analysis, and seeks to identify where the servicesoffered need to be better aligned to the needs of the public.


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Overview

3.1 In this chapter we set out in more detail the current administrative justice landscape, by which we mean the main areas of centralgovernment decision-making about individualsand the methods which are currently availableto individuals, at least in principle, to have thosedecisions reviewed. It is of necessity onlya summary and it deliberately concentrateson central government. We are aware thatdecisions are made every day by localauthorities and health authorities that have anenormous impact on people’s lives and may wellbecome the subject of disputes. Those servicesare not dealt with here nor are the disputeresolution mechanisms applicable to them.

3.2 A comprehensive description of theinstitutions and of the law which has grown up around what they do and how theyinteract would be extremely large. That factin itself speaks volumes. A citizen in ademocracy should be in a position to dealwith public institutions directly and easily,without the need to study large amounts ofinformation or to seek professional help.

3.3 An individual’s grievance may haveseveral facets. He or she may believe that the decision was illegal, or if not illegal, wrong, or that they weren’t told of their rights properly or that they were treated unfairly ordiscourteously. They may be opposed to thelaw which a department applied to their caseor believe that it doesn’t apply to them or that the department had a discretion which it should have exercised in their favour. Theymay be desperate to try any means at theirdisposal to tackle a problem they have. Orthey may simply be trying to do the best theycan for themselves or their family. But existingsystems of redress do not take people’sproblems as a whole. Instead they break themdown into types and generally insist thatpeople analyse what sort of redress they needand choose the appropriate route. It is ratheras if a travel agent insisted on knowingwhether you want to go by aeroplane, train orferry before asking what your destination is.

3.4 There are a number of routes to redressavailable where things go wrong:

• making a complaint:– to the decision-making department

or agency;

– to an independent complaint handler;

– to a Member of Parliament;

– to the Parliamentary Ombudsman.

• the bringing of court proceedings,challenging the lawfulness of the decision,seeking judicial review or some other remedy;

• the tribunal appeal, either challenging thelawfulness of the decision or, more usually,challenging the factual basis of the decision.

3.5 Each route to redress has its advantagesand disadvantages. Complaints are a flexibleand informal way of dealing with issues but no one in the complaints process outside thedecision-making department has the power to overturn the original decision (as opposedto prompting reconsideration by the originaldecision-maker or criticising the way in whichthe complaint has been handled); courts canoverturn the decision but only on narrowgrounds and the process is often complex andcostly; and tribunals, while they can overturn adecision, are not as accessible or speedy asthey might be. But people’s grievances are notso clear-cut and our task is to find ways ofcombining the strengths of all the redressmethods so as to give people real choice anda genuinely responsive service, equal to thebest service delivery organisations.

Departmental decisions

3.6 Public officials have to make decisionsabout the rights and obligations of individualsand businesses. These decisions matter.Practically anyone is or may be subject to adecision by a public authority. Even those notdirectly affected have an indirect interest. Weall have an interest in ensuring that individualsand businesses pay their taxes. We all have aninterest in eradicating poverty. We all have

3 The Administrative Justice Landscape


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an interest in ensuring that all our childrenget the best possible education. And we allhave an interest in ensuring that publicmoney is not wasted. A sense that thesystem is not balanced or effective or asense that the system overrides the rightsand interests of the individual underminesconfidence in public services.

3.7 These are large systems. The numbers of decisions made are huge. Here aresome examples.

Direct TaxIt is estimated that there are some 26 milliontaxpayers in the UK, which means millions of tax decisions. These decisions give rise to about half a million appeals per year, all ofwhich are dealt with by the Inland Revenue inthe first instance. If the Inland Revenue andtaxpayer are unable to settle the appeal, it isheard by a tax tribunal and there are some 25-30,000 hearings per year.

VATThere are about 1.7 million VAT registeredbusinesses in the UK and by way of examplesomething in the order of 82,000 VATassessments are issued each year byCustoms and Excise staff although this doesnot cover the full range of appealable VATdecisions that are made. About 2,000 of allVAT decisions are appealed but about 75%of these are resolved prior to a final tribunalhearing, through withdrawal, agreement orre-consideration by the department.

BenefitsThe Department for Work and Pensionsmakes tens of millions of benefit decisionsevery year and revises them when customercircumstances change, if necessary. In the great majority of cases customersaccept the decisions on their applications.Decisions are looked at again (reconsidered)when customers dispute them and may bechanged. Some 230,000 decisions a year end in an appeal tribunal. Of these, around40% are changed in favour of the customer.

Criminal Injuries CompensationIn 2001/2002 the Criminal Injuries CompensationAuthority made 39,813 tariff awards but morethan 37,000 other applications did not meetthe eligibility criteria for receiving an award. If the applicant remains dissatisfied after the

review, they can appeal to the CriminalInjuries Compensation Appeal Panel (CICAP).In 2002/03 CICAP received 4,764 appeals.

3.8 Public services are expected to getthese important decisions right. They mustcorrectly apply the law, and do so fairly andefficiently. But even where a high proportionof decisions are correctly made the individualmay not understand the decision or may beunhappy with the way in which he or she hasbeen treated. Even a small percentage ofinaccurate decisions can, in a largeorganisation, mean an unacceptable numberof individuals who are disaffected or whohave been deprived of their entitlement.

Reforming the public service

3.9 First and foremost we must havedepartments which get decisions right firsttime. That means that the decision-makershave to understand the circumstances ofindividuals and gear what they do to the rightsand needs of the individual, not to rigid rules.This key duty of government underpins boththe Human Rights Act and the Prime Minister’sfour key principles of public sector reform:

• National StandardsIt is the Government’s job to set nationalstandards that really matter to the public,within a framework of clear accountability,designed to ensure that citizens have the rightto high quality services wherever they live.

• Devolution and DelegationThese standards can only be deliveredeffectively by devolution and delegation to the front line, giving local leadersresponsibility and accountability for delivery,and the opportunity to design and developservices around the needs of local people.

• FlexibilityMore flexibility is required for public serviceorganisations and their staff to achieve thediversity of service provision needed torespond to the wide range of customeraspirations. This means challenging restrictivepractices and reducing red tape; greater andmore flexible incentives and rewards for good performance; strong leadership andmanagement; and high quality training and development.


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• ChoicePublic services need to offer expandingchoice for the customer. Giving people achoice about the service they can have andwho provides it helps ensure that servicesare designed around their customers. Anelement of contestability between alternativesuppliers can also drive up standards andempower customers locked into poor servicefrom their traditional supplier.

3.10 While there is still much to do, importantprogress has already been made under theearlier Modernising Government and CivilService Reform programmes. Talented peopleat all levels are being recruited to the publicservice, with new skills to add to the expertisealready available. Good progress is beingmade towards making public services morediverse. Through better training on projectmanagement techniques, improvements indelivery capability are on track. And there ismore focus on outcomes and rewardingpeople for delivery.

3.11 Thus it can be seen that much work isbeing done within departments to make realand fundamental improvements to the way in which they deliver public services. But thatmeans making the systems of redress fit forthe 21st century too.

Complaints to departments andagencies

3.12 What can an individual do? The first andmost direct remedy is to dispute decisionsdirectly with departments and agencies.

3.13 But in a democracy ruled by law, and under a government committed to high-quality and responsive public services, simplyappealing to a department’s sense of fairnessis not, and has never been, enough. There has to be redress beyond the department. But at this point the system becomes morefragmented and the individual is compelled to make choices as to how to go aboutobtaining redress.

Complaints to independentcomplaints handlers

3.14 Some departments have supplementedtheir complaints handling arrangements with

an independent complaints handler.Independent complaints handling schemeshave their roots in the public sector reforms of the early 1990s when the Cabinet Officerecommended that public sector organisationsshould have established and transparentcomplaints handling regimes, including‘independent review’ wherever possible. The first department to respond was the InlandRevenue, which set up the Adjudicator’sOffice in May 1993. Over time, otherorganisations have either created their ownequivalent office, or sought to utilise theservices of an existing body. For example, the Adjudicator’s Office was approached andappointed by Customs and Excise in 1995; by the then Contributions Agency (now theInland Revenue’s National InsuranceContributions Office) in the same year; by the Public Guardianship Office in 2001; and by The Insolvency Service in 2003. Furtherinformation about the two principal schemes,the Adjudicator and the Independent CaseExaminer, is given in Annex A.

3.15 Independent complaints handlers try toresolve complaints where a customer remainsunhappy with the way the organisation has dealt with their complaint. Remit is confined to matters of administration, with decisionswhich are appealable – for example thequantum of a tax assessment or the valuation ofa property – reserved to the respective tribunals.In considering a complaint, the scheme canrecommend what, if any, additional redress may be appropriate, ranging from apologiesthrough to sometimes very considerablefinancial redress. Systemic recommendationscan also be made aimed at improving publicservices for the future where a complaint hashighlighted a problem with current practice.

3.16 Complainants have direct access to the independent schemes and the serviceprovided, being funded by the organisations,is free to the customer. The sole pre-requisiteis that the complaint should first have beenconsidered by the department or agencyconcerned. In seeking to resolve complaints,increasing emphasis is placed on informaldispute resolution with agreement beingreached between organisation andcomplainant on the proper way to resolvethings. Where the independent complaints


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handler cannot resolve the complaint to thecomplainant’s satisfaction, it remains opento the complainant to take the complaint to an MP who may refer it to the ParliamentaryOmbudsman. In fact, that route is always opento a complainant, who is under no obligation to approach an independent scheme first, but only a minority of complaints do progressthrough the independent scheme to theParliamentary Ombudsman.

3.17 While these schemes are funded by the departments whose cases they deal with and cannot compel compliance with their decisions, they in practice operateautonomously and their decisions are almostalways accepted. They also provide feedbackto departments, which should raise thestandards of decision-making. However, theirexistence is patchy and it could be arguedthat there is scope for greater Governmentinvolvement in establishing a consistent andco-ordinated policy on the role and benefit of independent complaints handling schemes.

Complaints to Members of Parliament

3.18 The MP route stems from the constitutionalposition of government departments. Ministershave a duty to Parliament to account, and to beheld to account, for the policies, decisions andactions of their department and agencies.Anyone can seek the help of their MP who will,if they think it appropriate, raise the matter withthe relevant Minister either by letter or in person,or in the House of Commons. At the veryminimum the intervention of an MP means thatthe decision is reconsidered at Ministerial orChief Executive level. This is an important andflexible means of redress and the number ofcases raised this way is considerable. The tablebelow shows the number of letters from MPsand Peers to Ministers or Agency ChiefExecutives in a selection of departments. Of course many – perhaps most – of theseletters will be about policy issues rather thanindividual cases but the table gives an ideaof the scale of the role of MPs acting onbehalf of their constituents.

Department or Agency 2003

Number of letters received

Department for Constitutional Affairs 3,417

Department for Culture, Media and Sport 5,460

HM Customs and Excise 2,040

Ministry of Defence 5,977

Department for Education and Skills 14,424

Department for Environment, Food and Rural Affairs 10,410

Foreign and Commonwealth Office including UK Visas 47,132

Department of Health 19,118

Home Office including Prison Service 39,388

Inland Revenue 4,611

Office of the Deputy Prime Minister 9,121

Department for Trade and Industry 15,229

Department for Transport 11,653

HM Treasury 4,036

Department for Work and Pensions 18,762


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Complaints to the ParliamentaryOmbudsman

3.19 Where the constituent’s complaint isabout the way in which their case has beenhandled, rather than the substantive decision itis open to the MP to supplement his or her ownefforts with a reference to the ParliamentaryOmbudsman. The Parliamentary Ombudsmancan investigate complaints from people whoconsider they have been caused injustice byadministrative fault (maladministration) inconnection with the actions or omissions ofbodies within her jurisdiction. The ParliamentaryOmbudsman has considerable investigativepowers and can require departments to showher all the relevant papers. She is independentof government and her work is overseen byParliament. We look more fully at the role ofthe Parliamentary Ombudsman in Chapter 4.

Court Proceedings

3.20 Another route for redress stems from the obligation of departments to follow the law.The legality of government actions is controlledby the courts – the Administrative Court, whichis part of the High Court, in England andWales; the Court of Session in Scotland; andthe High Court in Northern Ireland. The courts’supervisory jurisdiction, exercised in the mainthrough the procedure of judicial review, coversall persons or bodies exercising a public lawfunction, unless Parliament has provided foralternative methods of redress or excludedjudicial review. Its primary purpose is to controlabuse of power by quashing decisions whichare wrong in law or outside the jurisdictionof the decision-maker. The importance ofjudicial review has grown over the past 40years but until recently it tended to focuson process. The courts explicitly disclaimedany power to consider facts or merits exceptinsofar as it was necessary in order to reach acorrect decision on the legal question involved.The Human Rights Act 1998 has changed thatsituation in that the courts, like all other publicdecision-makers, must act in accordance withthe European Convention on Human Rightsand so may have to make decisions aboutproportionality. Nevertheless, the courts’jurisdiction still does not extend to rehearingcases and finding a different set of facts or

reaching a different conclusion on the evidencegiven to the decision-maker or on the basis ofnew information. Judicial review proceedingsare complex and demanding and invariablyrequire help and representation by solicitorsand counsel. This is inevitably costly.

3.21 In 2002/03 the Administrative Courtreceived 5,123 applications for judicial reviewin civil and administrative cases, about half of which related to immigration and asylum.

3.22 In England and Wales, appeal from theAdministrative Court lies, with permission, to the Court of Appeal (Civil Division) and from there to the House of Lords. The positionin Scotland and Northern Ireland is similar.

3.23 Apart from judicial review the courtsin general do not have any power to overturndecisions of government departmentsadministering statutory schemes. Thejurisdiction of the courts is almost entirelydetermined by statute and Parliament hasin general decided that a remedy throughthe courts is not appropriate for most areasof administrative justice and for most legalissues arising out of employment.

Tribunals

3.24 With legislation creating rights to Stateservices (e.g. to benefits if certain conditions aremet) and obligations (such as to pay tax) camespecialist statutory tribunals to give bindingrulings in the event of disputes. Initially manywere seen both by users and administratorsmore as part of the administration than aswholly independent judicial bodies. They hadthe effect of diverting responsibility for individualdecisions away from Ministers. But with theFranks Report2 they became more firmlyestablished as part of the judicial system,but separate from the courts, which werenot thought able to cope with litigation arising out of statutory rights and benefits.

3.25 Of the tribunals still operating today, the first were the General and SpecialCommissioners of Income Tax who gradually shed their original administrativeresponsibilities and became purely judicialbodies. Among the earliest purely judicialtribunals were the ‘courts of referees’and ‘umpire’, established by the National

2 Report of the Committee on Administrative Tribunals and Enquiries 1957 CMNP.218


14

Insurance Act 1911 to handle appeals relatingto unemployment benefit and from whom thepresent-day Appeals Service tribunals and the Social Security Commissioners aredescended. They were followed by thePensions Appeal Tribunals, created afterthe First World War to make independentdecisions about entitlement to war pensions.Many other tribunals followed. When in 1971 Parliament created a new right not to be unfairly dismissed from employment thejurisdiction to decide disputes was given to a tribunal, which formed the basis of thepresent day Employment Tribunals andEmployment Appeal Tribunal. Over the yearsdifferent tribunals have increased or declinedin importance, with social change and the rise and fall of different rights and obligations. The tribunals responsible for setting rents, for instance, have declined with changingregulation of the rented housing sector;conversely, increased migration hasgenerated extra work for the immigrationappellate authorities.

3.26 Tribunals were designed to be less formalalternatives to the courts, combining fairnessand independence with accessibility andexpertise. But whereas they may be fair andexpert, to the user they may not always be very clearly distinct from the departmentwhose decisions they review. Many of them continue to be sponsored by thosedepartments, even if their chairmen andmembers are appointed by the Lord Chancellorand they have a degree of administrativeautonomy and a very strong independent ethos.We accept that, for cases which proceed to a full hearing before a tribunal, users are in the main treated fairly and that decisions areaccepted. But there is a prior issue. Canpeople who have a legitimate case overcomethe barriers to getting it resolved? Do theyeven know that they may have a case? Here the picture is much more mixed. Thereare indications from a number of studies

that there may well be significant numbers of individuals who, for a variety of reasons, do not seek redress when they could. Studiesin a number of jurisdictions have beensummarised in a recent report to the Councilon Tribunals by Professor Michael Adler andJackie Gulland of the University of Edinburgh.3

There is evidence in a more general contextthat people with legal problems feelthemselves unable to resolve them, at leastusing whatever formal means are available tothem. The recent publication from the LegalServices Research Centre – Causes of Action:Civil Law and Social Justice – revealed thatover the 31⁄2 year period of the research:

• more than one in three adults experienced a civil law problem; and,

• one in five took no action to solve their problem.

It was estimated that around one millionproblems go unsolved each year becausepeople don’t understand their basic rights or know how to seek help.4

3.27 Compared to most other forms ofindependent redress tribunals handle largevolumes. Workloads of individual tribunals can be volatile but in general about a millionpeople a year have cases dealt with by alltypes of tribunals. Not all cases are simple and straightforward, with only minor issues or modest sums of money at stake. On thecontrary, some tribunals deal with casesinvolving hundreds of millions of pounds, withhigh quality legal and expert representation;others deal with hugely complex discriminationcases, or with difficult points of law whichhave profound importance for both theindividual in the case and the community as a whole.

3.28 The following table shows the numberof appeals to the largest tribunals administeredby central government.

3 Tribunal Users Experiences, Perceptions and Expectations: a Literature Review, available on the Council on Tribunalswebsite www.council-on-tribunals.gov.uk

4 See also Paths to Justice by Hazel Genn (Hart: Oxford, 1999)


15

3.29 The extent to which tribunals succeed inserving the public is considered in Chapter 5.

3.30 So the main response of government to the need to have independent review ofdecisions about rights and obligations hasbeen to establish a tribunal. There are nowsome 70 tribunals in existence, some withvery large workloads but many moribund orwith insignificant workloads. All have somefeatures in common, usually those derivedfrom the courts – but there are alsovariations and differences between them,many explicable only in historical terms.Governments have proved unimaginativein devising new methods of reviewing theirown decisions. There is little by way ofalternative dispute resolution methodsavailable to supplement formal tribunalhearings. The only exceptions are:

• the role of Acas in settling employmentdisputes;

• in cases which may go to the SpecialEducational Needs and Disability Tribunal(SENDIST) local authorities are obliged to set up conciliation arrangements.

3.31 Both the public and private sectors need to create and maintain suitable and cost effective means of redress. In the nextchapter we look in more detail at the role ofombudsmen in both the public and the privatesectors and the lessons which may be learntfrom the way they handle complaints.

Received

Appeals Service 5 235,657

Mental Health Review Tribunals6 20,408

CICAP 7 4,434

SENDIST 8 3,638

General & Special Commissioners of Income Tax 9 29,498

VAT & Duties Tribunal10 2,496

Social Security and Child Support Commissioners11 6,364

Pensions Appeals12 3,372

Immigration Adjudicators13 91,945

Immigration Appeal Tribunal14 41,889

5 1/4/03-31/3/046 Does note include Welsh figures7 1/4/03-31/3/048 1/4/03-31/3/04 (does not include Welsh figures)9 1/1/03-31/12/0310 1/1/03-31/12/0311 1/4/03-31/3/0412 1/1/02-31/12/02 (decided figure includes withdrawn cases)13 1/4/02-31/3/0314 1/4/02-31/3/03


16

4.1 The office of Parliamentary Ombudsmanwas established by statute in 1967. Sincethen other ombudsman services have beenset up in both the public and private sectorsthroughout the United Kingdom. A list ofombudsman schemes and complaints-handling bodies in membership of theBritish and Irish Ombudsman Associationis at Annex B.

4.2 In this chapter we describe the lessonswhich may be learnt from the successfuldevelopment of ombudsman services in boththe public and private sectors by particularreference to three of them.

Parliamentary Ombudsman

4.3 The role of the ParliamentaryOmbudsman has already been outlinedin para. 3.19. Following an investigation,if the Ombudsman finds that a complaintis justified, she can recommend that theorganisation complained about shouldprovide a remedy. She has no power toenforce her recommendations; butgovernment departments and agenciesalmost always accept them. Sometimesinvestigations reveal faults in proceduresor systems; and the report can leada department or body to revise theirprocedures so others do not suffer thesame difficulties. The Ombudsman has nospecific duty to try to resolve the disputebetween the complainant and the publicauthority amicably but, particularly in recentyears, the Ombudsman has aimed to settledisputes by making informal enquiries ofdepartments and agencies, and agreeingrecommendations for settlement, rather thanby launching formal statutory investigations.Less than 5% of the cases concluded by theOmbudsman in 2003/04 involved the issue ofa statutory investigation report.

4.4 The Ombudsman also has powers toreport directly to Parliament in cases whereshe considers that the injustice identified has not been remedied; or to make ‘special

reports’ to Parliament on any other mattersshe thinks fit. Notable examples include the Ombudsman’s report in 1989 of hisinvestigation into the Barlow Clowes financialscandal which led to payment of a total ofsome £150 million in compensation tothousands of investors; and the Ombudsman’sreports in 2000 and 2001 concerning the StateEarnings Related Pension Scheme (SERPS),where the results of a representative sample of investigations from over three hundredcomplaints gave redress for maladministrationto thousands of married couples who hadplanned for their financial future on the basis of incorrect information disseminated by thethen Department of Social Security. A singleinvestigation by the Parliamentary Ombudsmancan therefore lead to the resolution of disputesfor many thousands of people.

4.5 The Parliamentary Ombudsman oughtnaturally to be an integral component ofattempts to plan and to improve public servicedelivery. The Ombudsman’s aim is a servicethat should have as its core purpose the flexibleand timely resolution of complaints which itachieves by securing appropriate outcomes for individual complainants and by providingauthoritative recommendations, whereappropriate, to those bodies which are thesubject of complaints. By doing so, it shouldalso contribute to efforts to improve complaintshandling and to modernise public services.

Local Government Ombudsman

4.6 There are three Local GovernmentOmbudsmen (LGO) for England. They wereestablished some 30 years ago under theprovisions of the Local Government Act 1974.This Act sets out a legal framework which isessentially similar to that for the ParliamentaryOmbudsman but adapted to cater for theLGOs’ specific jurisdiction over the activitiesof local government and certain other localservice providers. Like the ParliamentaryOmbudsman, the LGOs may only investigatecomplaints from the public who consider

4 The Development of Ombudsman Services


17

they have been caused injustice bymaladministration (administrative fault)in connection with the actions or omissionsof authorities within their jurisdiction.

4.7 This legal framework has a numberof consequences. The focus of the LGOs’work is on injustice suffered by the personaggrieved – they do not generally look at thepotential faults of an authority in the absenceof personal injustice. Their powers are alsolimited to powers of investigation, ratherthan to provide other routes of alternativedispute resolution such as mediation orinformal arbitration. But investigationsare kept as informal, flexible and non-confrontational as possible. There is nocharge for the service and complainantsdo not need to be represented.

4.8 The LGOs have much experience ofhandling significant volumes of complaints,with annual incoming complaint levelsnationally running at around 19,000. Where it makes sense, complaints of a similar kindwill be grouped to ensure consistent andspeedy treatment e.g. where there has been a systemic breakdown of a service within aparticular authority or group of authorities, as happened with housing benefitadministration in recent times.

4.9 The LGOs’ investigative processes includesignificant direct contact with complainants onthe telephone, by email and often by home visit.

4.10 For many years the LGOs have viewed their statutory framework flexibly and developed informal dispute resolutionprocesses. They use their wide discretion toend their involvement with complaints wherean authority accepts in the course of aninvestigation that it would like to put right anywrong it may have done to the complainant.The advantages of this approach are that itbrings a swift remedy for the complainant and it can avoid the additional delay and cost of an ‘in depth’ investigation.

4.11 The LGOs also provide advice andguidance on good administrative practice in a number of ways, including:

• publication of guidance notes, e.g. onrunning a complaints procedure and on remedies for justified complaints;

• issue of special reports which drawtogether the lessons from a variety ofcomplaints investigated by the LGOs on aparticular topic and set out recommendedgood practice;

• publication of annual reports and digests of cases;

• annual letters to all local authorities withintheir remit which draw attention to lessonsto be learned from the complaints whichhave been investigated;

• regular liaison meetings between LGO staffand Council officers; and

• training for Council officers in complaintshandling and regular visits by LGOs tosenior managers and leading membersin local authorities.

4.12 By providing this advice and guidance,the LGOs seek to provide feedback to localgovernment on issues which are revealed bytheir investigations and to improve the capacityof local government to resolve disputes locally without the need for reference to theOmbudsmen. Some of the LGOs’ reporteddecisions and special reports, in particular,have had a powerful influence on administrativepractice within local government generally, to the benefit of many more citizens thanactually complain.

Private sector ombudsmen

4.13 Redress against businesses (and bybusinesses against debtors) has traditionallybeen the job of the courts. But a battle in thecourts is not just a daunting prospect for theindividual, it is an unattractive option forbusiness. Over the past 30 years the privatesector has sought to avoid these battles bydeveloping customer service, complaintshandling and arbitration. The last stage in thisdevelopment has been striking: the regulatedsector in particular has adopted and adapted theombudsman model. Starting with the InsuranceOmbudsman in 1981 a number of sectors havecreated new ombudsman schemes, some with astatutory underpinning, but all with institutionalarrangements which set them far enough apart from their parent industries to make them sufficiently independent to claim genuineombudsman status.


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4.14 The Financial Ombudsman Service (FOS)was established in 2000 and brought togethera number of schemes, each dealing withdifferent aspects of the financial servicesindustry. It is probably the largest UKOmbudsman scheme. In 2003/04 it handledabout half a million complaint enquiries,90,000 that were resolved by advice andaction from the ombudsman service, and justunder 100,000 cases that required full disputeresolution. The Service resolved 47% of thosecases requiring dispute resolution within 3 months and 80% within 6 months. The cost is met entirely by the financial servicesindustry – there is no charge to consumers.

4.15 The ombudsman model has beenadopted in the private sector in the sense that the ombudsmen use similar inquisitorialmethods to the Parliamentary Ombudsmanrather than court type tribunal hearings. Butwhere they differ is in having an explicit remitto resolve, and if necessary rule on, disputesabout contractual services rather than aboutpublic sector maladministration. And theyhave shown themselves able to deal with largenumbers of cases. This has been described astransforming the concept of an ombudsmanfrom “hand crafted investigations … to themass processing of complaints.” 15

4.16 These new services seem to commandthe confidence of the consumers they serveand the industries and services whosedecisions they review. For the firmsconcerned, court cases which can becostly and may be damaging to the firm’sreputation, are replaced in the main by aservice which is not too expensive whenspread across everyone in the industryand which largely operates in private.For the consumer, the service is free, legalrepresentation is unnecessary, the issuecan usually be solved quickly using informalmethods and, crucially, the ombudsman isfocused on what really matters to the user:resolving the dispute and as far as possiblegetting a fair result, the outcome dependingon the strength of a party’s case rather thanhow well the case is presented.

4.17 Taking the example of the FOS again, the service provides tiers of intervention frominitial advice, to mediation or conciliation, to adjudication, (that is, offering an indicationof the likely outcome), to a final decision by the ombudsman. The process is paper basedthroughout and contact between the service,the complainant and the firm is usually bytelephone, although the ombudsman can hold hearings if necessary.

4.18 Finally, the private sector ombudsmenusually have an explicit role in improvingdecision-making and the firms concernedhave a financial interest in ensuring the wayin which they treat their customers will meetwith the approval of the ombudsman. Thereis clear evidence of this virtuous circle; manyof the private sector ombudsmen (and,before them, arbitration schemes) have seenan initial rise in complaints level off and evendecline as the firms learn to treat theirconsumers in a way which will not generateombudsman cases.16

4.19 The FOS provides feedback to thefinancial services industry in a number ofways. Firstly it shares information with theaim of dispute avoidance through its monthlypublication – Ombudsman News. Secondly, itholds industry-briefing events under the titleWorking Together which can cover the waythe ombudsman is likely to view certain typesof complaint. FOS also provides a technicaladvice service for professional complaints-handlers in firms and the consumer advicesector. This can provide general guidanceand advice on ombudsman practice andprocedures. Finally, the ombudsman providesfeedback to the industry regulator (theFinancial Service Authority) where amongstother things, regulatory policyrecommendations can be made.

Lessons from the development of ombudsman services

4.20 The key aim of ombudsmen is toimprove service delivery and to promotebetter administration by learning thelessons from effective complaints handling.

15 Tom Williams and Tamara Goriely A Question of Numbers: Managing Complaints Against Rising Expectations inAdministrative Justice in the 21st Century edited by Michael Harris and Martin Partington (Hart: Oxford, 1999) page 100

16 Ibid, pp104-111


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Of course the encouraging experience of theombudsman systems cannot be automaticallycarried over unchanged into tribunals. Unlikea contractual dispute, decisions arising out of many public sector services, such asentitlement to benefit, cannot be settled witha compromise, splitting the difference betweentwo positions. But the fact that the natureof the decision ultimately to be made isdifferent does not mean that there is only oneway to reach that decision. On the contrary,we believe that the government has much tolearn from the success of ombudsmanschemes. Our purpose is to reclaim the ideaof flexible dispute resolution for a new eraand a different scale of operation, so that thepublic receive a service tailored to their needs.

4.21 Can the changes we want to seebrought about happen with the existinginstitutional structure? We do not believethat they can. Administrative justice canbe described as a system but it was notcreated as a system and no coherent designor design principle has ever been appliedsystematically to it. It is a patchwork. Oneoption would be to create a new institution ofsome kind with the job of improving decision-making and resolving disputes informally. Buteven with such a new institution there wouldbe a need for an authoritative body, with thepowers of the court, to have the final word onrights and obligations. We believe the field istoo cluttered already with administrativejustice institutions. What we need to dois to create the unified tribunal systemrecommended by Sir Andrew Leggattbut transform it into a new type oforganisation which will not only provideformal hearings and authoritative rulingswhere these are needed but will have aswell a mission to resolve disputes fairlyand informally either by itself or inpartnership with the decision-makingdepartment, other institutions and theadvice sector.

4.22 In the next chapter we explore in moredepth the weaknesses of the present systemand in the following chapter we set out how anew body would look and what it would needto do to fulfil the mission we have set for it.


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5.1 This chapter analyses the effectivenessof the tribunal system today in providingredress. For these purposes we have workedon the assumption that potential users willwant and are entitled to the following:

• manifest independence of the new systemfrom those whose decisions are beingreviewed;

• appropriate waiting times: that is that casesare dealt with at the right speed;

• cases resolved without formal hearings ifpossible;

• when hearings are necessary accessiblehearing centres with modern facilities;

• easily navigable, comprehensive andcomprehensible information about the process;

• hearings which are not daunting or legalistic;

• independent and skilled judiciary;

• authoritative, consistent andcomprehensible decisions which commandthe respect of those affected; and

• a cost efficient service that provides goodvalue to the taxpayer.

5.2 How does this vision square with what we know about the user priorities andexperience? The literature review referred to in para. 3.26 provides some information forspecific jurisdictions although some of the studies may not reflect more recentchanges in the tribunals’ world. In addition, we employed MORI to conduct a survey oftribunal users in December 2001. This surveyconcentrated on process and so did notaddress every issue.

Independence

5.3 Most central government tribunals aresponsored by the Departments which havelead responsibility for the law on which

tribunals are adjudicating and/or which aregenerating many of the decisions which areunder review. The Department usually paysthe fees and expenses of the tribunalmembers and may also appoint some ofthem. These tribunals may act independentlybut they are not seen to be manifestlyindependent of those whose decisions theyare reviewing. Furthermore, informationabout the tribunal process often comesfrom the original decision-maker, furtherundermining confidence in the independenceof the tribunal.

5.4 Sir Andrew Leggatt concluded thatresponsibility for tribunals and theiradministration should not be the responsibilityof those whose decisions tribunals arereviewing. Otherwise, it was suggested, forusers “every appeal is an away game”17. Hisfindings drew widespread support from userrepresentatives and the tribunal judiciary. Thisissue drew the largest number of responsesto the government’s consultation paper on theLeggatt Review with nearly 80% ofrespondents perceiving the current linksbetween tribunals and public authorities to bea threat to the independence of tribunals. Theargument was summarised by the NationalAssociation of Citizens’ Advice Bureaux whosaid, “In order for there to be confidence inthe findings of the tribunal system it is vital forthere not only to be independence andimpartiality but for this to be clearly seen byall who use the system, whether appellant orrespondent”.

Waiting times

5.5 We know that waiting times can be toolong. It is right that hearings only go aheadwhen all the information is to hand and theevidence gathered and realistically it maytake time to do this especially in the morecomplex cases. But in general the delaysendured by some tribunal appellants give

5 Tribunals: The Service Today

17 paragraph 3 p.6


21

a picture of an under-performing publicservice. And these statistics do not tell thewhole story. They frequently count only thetime from receipt of case to date of firsthearing. There are almost always delaysbefore – while the department or authorityprepares the material to send to the tribunal –and after – because many hearings areadjourned or further hearings are requiredbefore the outcome is determined. And evenwhen the tribunal has made its decision theremay be a further delay before the decision isimplemented. Yet tribunals may be dealingwith cases where a quick decision is vital.

5.6 In the MORI survey 18% of respondentsidentified speeding up the process as one ofthe improvements they would wish to see.

Informal resolution

5.7 Settlement by negotiation is common in the tax and employment jurisdictions. The vast majority of tax appeals are settledwithout a hearing. Acas settles 40% ofemployment tribunal cases (and another 30%are withdrawn or settled by compromiseagreements). In other jurisdictions there arepowers for departments to revise decisionsbut no formalised mechanism for disputeresolution apart from the tribunal. This meansthat in some cases the appellant is compelledto go to a tribunal hearing when the problemcould have been resolved earlier and moreeasily if there had been a suitable trigger fordispute resolution by the department.

Accessibility to hearing centres

5.8 The MORI survey tells us that almost 40%of users surveyed needed to travel for morethan one hour to reach the hearing. It alsofound that over a third of users (36%) said they did not feel ‘comfortable’ in the tribunalbuilding. And 2.5% of appellants who had goneall the way through the process and had theircase scheduled for hearing decided not toattend because of the distance to be travelled.

Accessibility of process

5.9 User representatives argue that clients are often confused by decisions giving rise toappeals and information about appeal rights.The MORI survey showed that 29% of userssurveyed felt they were not given enoughinformation in the initial decision letter toreach a decision while only 51% describedthe letter notifying them of the initial decisionas helpful.

5.10 Users express the view that a systemthat should be informal and accessible islegalistic and complicated. The MORI surveyfound that almost 40% of those who didappeal said they received little or noinformation from the tribunal advising them on what would happen. Users also complainof tight timescales for lodging appeals.

Hearings and the judiciary

5.11 The MORI survey indicated a very highlevel of satisfaction with the courtesy shownby tribunal members (on average 89% ofusers were satisfied) and the willingness ofthe tribunal to ensure that the user hadsufficient opportunity to contribute to thehearing (average of 79% satisfied). Butsatisfaction was lower for willingness toexplain complex issues and the degreeto which the user felt that the tribunalunderstood his or her case (64% and 66%satisfaction respectively). This might suggestthat the problem lies not so much in the wayin which hearings are conducted as in theinherent complexity of much of the lawwhich tribunals have to administer, or it maysimply reflect the fact that inevitably a highproportion of users were unsuccessful.

Quality of decisions

5.12 Adverse decisions can in mostcircumstances be appealed to or reviewed by ahigher tribunal or court. Except for decisions byimmigration adjudicators, onward appeals run


22

at an extremely low level. The governmentbelieves that the exceptionally high rate ofappeal from immigration adjudicators to theimmigration appeal tribunal is fuelled more bythe intention of many appellants to postponeas long as possible removal from the UnitedKingdom by using every procedural means at their disposal, rather than by the quality of decisions by adjudicators.

5.13 The very low level of onward appeals in almost all tribunals could indicate that ingeneral there is a high level of acceptanceof the decisions and this is one indicator ofthe quality of decisions. But equally it couldindicate that appellants just give up. Sothere is an argument for other forms ofreview of the quality of decisions. But clearlythe government, which is a party to mosttribunal cases, cannot act as an independentassessor of the quality of tribunal decisions.Only the judiciary themselves can do that.Systems for peer review of judicial decisionsare now being introduced into tribunals andthey will provide a further check that thequality of decisions is as it should be.

A cost effective service

5.14 We accept Sir Andrew Leggatt’sassessment of the present system asincoherent and inefficient.

5.15 We have explained that manytribunals operate in relative isolation withingovernment departments whose corebusiness is often far removed from therunning of a tribunal. And we have notedthe effect this has on the services theydeliver to customers. But it also has aneffect on how the resources invested inthem at the taxpayer’s expense are used.

5.16 The reforms described in our WhitePaper are primarily aimed at delivering animproved service rather than making a casefor change which is fundamentally financial.Nevertheless there is a financial case forreforms too – a financial case based aroundthe more efficient and better targeted use ofresources delivering improved services forthe investment made. In this section we lookat the financial case for reforming tribunalsand what the taxpayer should expect by wayof efficient use of resources.

Current service

5.17 The current service provided by the 10 largest tribunals costs just under £280meach year. The table below shows how thisamount is broken down:

• judicial costs are the largest singlecomponent of costs, which are broadlymade up as follows:

• the three largest spending tribunals (AS, ETS and IAA) are responsible for around 85% of the total annual spend.

5.18 The cost per case disposed of variesconsiderably between tribunals, as one would expect given the very varied nature of their workload. The lowest cost achieved is by the General Commissioners of IncomeTax but much of their caseload consists ofapplications by the Inland Revenue forpenalties to be imposed which can bequickly and easily disposed of. Of the othertribunals, which deal with disputed cases,the lowest costs are achieved by the AppealService with an average which runs at justunder £200 per case. This is broadlycomparable with the costs of the FOS where,if all complaints resolved are included, theaverage cost in 2003/04 was £217. Theaverage cost of those resolved by fulldispute resolution was £473.

5.19 Other tribunals, ombudsmen andcomplaints handlers have higher unit costs,depending in large part on the nature of the cases they deal with. Quite apart fromdiffering caseloads tribunals and ombudsmen

Percentage Cost Component of Total Spend

Judicial Costs 44%

Staff Costs 24%

Accommodation Costs 22%

Other Costs 10%

Total 100%


23

generate different types of cost for the parties.In tribunal proceedings, for instance, theparties must provide all the evidence to thetribunal whereas ombudsmen have the abilityto seek out the information they considerthat they need. It may be reasonable forparties to tribunal cases to bear these coststhemselves but some are more properlyborne by the taxpayer through, for instance,the legal aid system and grants to voluntaryorganisations. And both tribunals andombudsmen deal with test cases wherethe money spent on one case establishesa principle or precedent which can then beapplied in thousands of other cases withoutthe need for them to go through any formof dispute resolution process.

5.20 Costing the different types of processis therefore not straightforward and there isno basis for assuming that a process appliedto one type of case in one jurisdiction can beapplied to another type of case in a differentjurisdiction at the same cost.

Future service

5.21 Our work to date has shown that we can anticipate that savings can be made bybringing services together in the following ways:

• improved use of hearing centres to allow areduction in bookings of temporary hearingvenues;

• introduction of a single judicial office:allowing legal members to work acrossjurisdictions where qualified to do so;

• permanent staff savings: as a result of theintroduction of economies of scale within asingle management structure; from greaterintegration of business processing (wherethis is possible without damagingnecessary specialist expertise) and frommore modern ways of working;

• accommodation and related savingsstemming from more integration of staff in fewer locations;

• supplies and services: through negotiationof improvements in supplies and servicescontracts; and

• reduced corporate governance costs.

5.22 Some of these savings will come fromsimply bringing tribunals together into asingle organisation. More radical savings relyon some degree of integration of operationalprocesses allowing staff savings and betterutilisation of judicial resources. Others wouldrequire significant investment in newbuildings and new ICT; and in training andprocess re-engineering.

5.23 We will keep under review the extent to which additional investment can be selffinancing through re-investment of efficiencysavings. We seek particularly to establish the extent to which further savings may beachieved through exploitation of on-goingmodernisation initiatives in individual tribunals including:

• development of new IS/IT systems (although these may take some years to come to fruition);

• exploitation of process re-design, to rationalise service delivery;

• opportunities for the co-location of staff in a smaller number of administrationbuildings as leases expire; and

• rationalisation of the hearing centre estate.

Accommodation5.24 The challenge of finding suitable,accessible, independent accommodation isa problem that exercises all tribunals from thelargest to the smallest. In some areas of thecountry – such as major towns and cities –there are clusters of accommodation ownedby different tribunals delivering the same typeof service, sometimes even from the samebuildings. Until now, there has been limitedopportunity or impetus to maximise their use.Utilisation rates vary considerably acrosstribunals; some need to hire casual (oftenunsuitable) venues – whilst others havehearing rooms standing empty. For instancethe large estate of the Appeals Service has autilisation rate of only around 50% for itshearing centres, while two of the top tentribunals (SENDIST and CICAP) resort tohiring hotels or other casual accommodationfor their hearings. There are cities and townswhere both the Appeals Service and theEmployment Tribunals Service have separatehearing venues and others where neither


24

has a centre. Remote and rural locations,notably in Scotland and Wales are poorlyserved. The system needs an estatesstrategy which makes best use of resourcesand is geared to known customer needs.

Information Technology5.25 The inefficiency of effort and resourceis particularly apparent in the area oftribunals’ information technology needs. Allare faced with developing and maintainingtheir own IT systems even though there aresome common business requirements; e.g.case registration, booking the hearing etc.This has been an area in which the levelsof investment tribunals have been able toobtain from their sponsors has varied.

Workloads5.26 The current demarcation betweentribunals also produces an inflexible approachto new tribunal work or fluctuations inestablished jurisdictions. New tribunals are stillbeing created as government seeks to ensurethere are proper channels for citizens toresolve disputes with public bodies. Forinstance five new tribunals may be createdduring the present session of Parliament.Though many are small, the costs of establishingthem can be disproportionately high.

5.27 Established tribunals’ workloads canbe very volatile. But resources – judiciary,staff, money – cannot be easily deployedacross jurisdictions. So the user and thetaxpayer both suffer.

Conclusion

5.28 These are not failures of individualtribunals; they are failures of the systemor rather the lack of one. There are someprogrammes to modernise services and therehave been some attempts to share bestpractice. But where progress has been made,this has been in spite of the framework withinwhich tribunals operate. Despite the efforts ofthe Council on Tribunals there are no effectivemechanisms currently in place which ensurethat the benefits of progress are sharedacross the administrative justice system.

5.29 The total cost of the tribunal ‘system’is in the region of £280m per year. Thismoney is not being spent effectively. Webelieve that for the same resources a muchbetter system can be created.

5.30 The case for change is strong. And itis a case for collective action to deliver betterservices to users.


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6.1 Previous chapters of this White Paper,the Leggatt Review and many other reportshave set out some of the failings in the way inwhich decisions about individuals are takenand reviewed. There is no lack of goodwillwithin the public service to solve the problemsand improve service to the public but thepresent arrangements are highly fragmented,with each department, agency or tribunalresponsible for trying to make improvementswithin its own sphere of operation. We believethat we need an approach and institutionswhich span the whole of government, joiningup best practice and driving improvementforward. At the heart of our proposals are:

• a commitment across government to betterhandling of complaints and faster, friendlierand cheaper solutions;

• a unified service, replacing the fragmentedsystem of tribunals with a role to promoteproportionate dispute resolution in centralgovernment; and

• an Administrative Justice Council, basedon the Council on Tribunals but with anexpanded remit.

6.2 The Administrative Justice Council isdealt with in Chapter 11. This chapter dealswith our proposals for a unified disputeresolution system.

The role of DCA

6.3 DCA will take the lead on co-ordinatingredress policy across Government. Its task willbe to facilitate development of more integratedand consistent dispute resolution systems forthe benefit of the public. It will take a systemicview across the various means of tacklingdisputes and the roles of the differentorganisations that provide them (courts,tribunals, Ombudsmen, independentcomplaints handlers, etc). It will proposeways of dealing with gaps, weaknesses andoverlaps while drawing on the unique qualitiesand key strengths of the distinct elements ofthe current arrangements, although apart fromtribunals it will not take over sponsorship of

or intervene in individual schemes nor will itbe able to dictate to other departments,agencies or local authorities.

6.4 On 11 March 2003 the then LordChancellor, Lord Irvine of Lairg, announcedproposals for a unified tribunals servicewhich would have at its core the top tennon-devolved central government tribunals.We will continue with that plan but this unifiedtribunals system will become a new type oforganisation, not just a federation of existingtribunals. It will have a straightforwardmission: to resolve disputes in the bestway possible and to stimulate improveddecision-making so that disputes donot happen as a result of poor decisionmaking. All of its activities will be subordinatedto these aims. We intend that the existingjudiciary and staff from the tribunals will worktogether to provide a range of establishedand innovative services to the large anddiverse range of customers currently servedby tribunals and to those entitled to redressbut who at present do not seek it. Its keyfeatures need to be independence,professionalism, accessibility and efficiency –which is what we believe users and potentialusers want and are certainly entitled to.

6.5 This is a major undertaking, comparable inscope to and in many ways more radical thanthe reforms which we have already undertakenof the civil and criminal justice systems.

6.6 The basis for this new organisation is theten largest tribunal organisations administeredby central government. These ten areresponsible for more than 90% of cases.DCA already has administrative responsibilityfor five of these, together with a number ofsmaller tribunals. These tribunals will form thecore of the new system (the Tribunals Service)and will be joined by the Appeals Service, theEmployment Tribunals Service, the SpecialEducational Needs and Disability Tribunal, theCriminal Injuries Compensation Appeals Paneland the Mental Health Review Tribunal forEngland, which will transfer from their currentsponsoring departments.

6 Resolving Disputes: A New Approach


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6.7 A full list of those tribunals within thescope of the new service is at Annex C. The particular implications for employmenttribunals are dealt with in Chapter 8, and fortax tribunals in Chapter 9. Housing tribunalsare dealt with in Annex D. The major tribunalswill join the new service between 2006 and2008 and the others at dates to be agreedbetween DCA and sponsoring departments.

6.8 Tribunals run by local government have,for now, been excluded from the remit of thenew service. Their funding and sponsorshiparrangements are sufficiently different to meritseparate and fuller review. This review will take place soon after the new service is set up.

New tribunals

6.9 The Government’s general policy is that all new tribunal jurisdictions (unless they are to be devolved) will become part of the neworganisation, which will have the capacity toset up and run them far more efficiently than if they were to be created as wholly new andseparate operations. In the interim all newtribunals will be administered by DCA.

Devolution

6.10 Neither this White Paper nor the LeggattReview is concerned with tribunals in Scotlanddealing with devolved subjects. These areentirely a matter for the Scottish Executiveand the Scottish Parliament. But the neworganisation will include some tribunalsadministered by central governmentthroughout Great Britain so these tribunalswill have a presence in Scotland. There arealso a number of tribunals which operate insubject areas reserved to the UK governmentbut whose administration has been devolvedto the Scottish Executive or the NationalAssembly for Wales. In Wales there are similarlysome tribunals dealing with devolved subjectsand which are administered by The NationalAssembly for Wales within the framework ofprimary legislation made at Westminster. Wewill review with the Scottish Executive and theNational Assembly for Wales the futurearrangements for all these tribunals in thelight of the new organisation we are creating.We will review with the Scottish Executive theimplications for the Court of Session of theproposed relationship between the new tribunalorganisation and the courts in England and

Wales. Whatever future arrangements may becreated our intention is that the neworganisation will work closely with the ScottishExecutive and the National Assembly for Walesto make best use of the facilities available to both.

6.11 Many of the issues which haveprompted this programme of reform may alsobe relevant to the administration of tribunals inNorthern Ireland, and so Northern Ireland willconsider the implications, taking into accountits own particular circumstances. Any reformprogramme for Northern Ireland would be thesubject of separate consultation.

Benefits to users

6.12 How will this change benefit users? Firstwe must ensure that potential users are notdeterred by inappropriate or disproportionatebarriers to access. More work needs to bedone on this fundamental issue. We will becommissioning research to examine how far allthose whose problems can in theory be dealtwith by tribunals in fact make use of this route.This research will be available to form the basisfor action on the part of the new organisationas it comes into operation. This research willalso inform the development of services in thatit will provide up to date empirical evidence asto what potential users of the new systemactually want from it.

6.13 So what benefits can users expect to see from a single organisation?

Independence6.14 Sir Andrew concluded that the only wayin which customers could be satisfied thattribunals were truly independent was “bydeveloping clear separation between theministers and other authorities whose policiesand decisions are tested by tribunals, and theminister who appoints and supports them”. Incontrast to many other Ministers, theSecretary of State for Constitutional Affairsdoes not make the kind of decisions that aresubject to appeal. DCA also has a particularmission to protect judicial independence, whichwill continue to be a key feature of the neworganisation, and to improve access to justice.The creation of the new organisation withinDCA will, therefore, ensure that the largesttribunals in administrative justice are manifestlyindependent, and are seen to be independent,from those whose decisions they are reviewing.


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Hearing centres6.15 Bringing together the ten largesttribunals will deliver a network of hearingcentres offering a better geographic spreadthan any individual tribunal can offer. Thiswill, in turn, be part of the greater singleestate of DCA. This includes the Crown andcounty courts estate and is set to grow evenfurther with the addition of the magistrates’courts estate in 2005. DCA will develop acommon estate that supports both courtsand tribunals in a way that recognises theirdifferent requirements but allows both totake advantage of the potential for sharing,especially in more remote locations whereonly a combined court or tribunal hearingcentre would be sustainable.

6.16 The strategy for this common estatewill be firmly based on research into userwishes and needs and consultation with usergroups. The new organisation will need toestablish, not just assume, what the rightbalance is between facilities and location.

6.17 Subject to that, however, over timewe will raise the standard of hearing centreaccommodation. We will establish a designguide for tribunal premises ensuring thatfuture projects for buildings will be built to thesame standard. This will also ensure that therequirements of the Disability DiscriminationAct are met.

6.18 We will introduce flexible, commonlayouts for hearing rooms so that they are available to the maximum number oftribunals. This will create informal settings for appellants, where these are appropriate.

6.19 Facilities provided for appellants, panelmembers and staff vary widely across thediverse tribunal estate. Our aim is to establishminimum standards for all hearing locationsincluding facilities such as refreshments,consultation space, hearing rooms and waitingareas. Where existing facilities are belowstandard provision will be made (whereverpossible) in on-going works to bring them tothe level set out or to investigate moving tobetter premises upon lease expiry or as aresult of co-location or other opportunities.

A radical approach

6.20 But the bringing together of thesetribunals into a new organisation with a new

mission also means that the whole way inwhich services are provided can be reviewed.At the moment, for instance, all cases whichrequire a decision can mean an oral hearingby the judiciary. For some tribunals, such asthe Appeals Service and the ImmigrationAppellate Authority (IAA), the overwhelmingmajority of cases are disposed of in this way.Yet we know that decisions do not have to bemade this way. Ombudsman services haveshown that perfectly sound decisions can bemade which fully respect the rights of partieswithout formal hearings. Telephone and videoconferencing already makes it possible tohave virtual hearings but we need to go furtherand to re-engineer processes radically so thatjust solutions can be found without formalhearings at all. We expect this new organisationto innovate. The leadership of the neworganisation will have the responsibility toensure that it does. The organisation will inheritexisting jurisdictions and procedural rules butits overarching mission will be disputeresolution and we expect it, in conjunction withdepartments, users and representatives, todevelop new ways of operating. We believe thisto be possible even where the issue is one ofentitlement rather than compensation. In manycases appellants succeed before tribunalsbecause they bring new evidence, possibly asa result of advice, or because they are morearticulate orally than on paper and the tribunalis the first opportunity they have had toexplain their case. In other cases the tribunalaccepts evidence which the original decision-maker was not prepared to accept. These arebenefits which flow from having a tribunalhearing but it is possible to imagine ways inwhich the same benefit could be achievedwithout the stress and formality of a hearing.And where it is clear to the tribunal that thereis likely to be a particular outcome to a caseit must be helpful to everyone if reconsiderationcan be prompted before a hearing takes place.

6.21 Such an approach would not and neednot operate in every type of case. Some are so straightforward that it is quicker and morecost effective for the case to proceed straightto a tribunal for decision. But in other areas,where the issues are more complex andparticularly where the success rate forappellants is high, there is a good case forestablishing a process which will bring earlyresolution in a way which benefits everyone.Staff working on behalf of and with delegated


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powers from the judiciary could well have animportant role to play in such a process.This will mean new skills for staff, differentworking arrangements for judiciary and staffand new powers for both.

6.22 There is clearly potential for thesenew services and, we believe, a willingnessamong committed tribunal judiciary and staff totry them. We therefore intend that the neworganisation will have the powers it needs todevelop these and other innovative services.As we explained in Chapter 5, it is not possibleto make any reliable assumptions about theimpact on cost of introducing any of these newservices. Nor do we know what impact theywould have on the disposal of cases. Theymay mean a significant reduction in thenumber of cases which require a full judicialdetermination or they may turn out to be justanother step in the process, adding cost andslowing things down. Prudence and commonsense dictates that any new service will needto be piloted so we will launch one or moreproportionate dispute resolution projectsto test if these alternatives are effectiveand affordable. The timeline in Chapter 12indicates when this process could start.

6.23 Where this can be done the stresson users can be reduced and the cost ofdispute resolution, for users, their advisors,departments and the taxpayer generally can allbe reduced. Of course the rights of participantshave to be safeguarded and in many casesa hearing will be unavoidable. None of theseproposals is intended to result in any individualreceiving less than the entitlement or remedythey would obtain from a full judicialdetermination, nor, conversely, is it intended todistort duties which a department owes to allits clients, the tax payer and the community.But the important point is that the creation ofthe new organisation with its new missionplaces the responsibility for developing this ina feasible but principled way firmly on theleadership of the new organisation.

6.24 The second area where there is potentialfor radical change is in the operational functionsof tribunals – case registration, processing andscheduling, and the distribution of decisions.At present these functions are divided up bytribunal and scattered across a large numberof locations. As we create a more unified andflexible system, and as we move away fromhearings as the sole method of resolving

cases, so the back office functions will needto be rationalised too. The IAA centres atLoughborough and Leicester have shownthat there is no need for the back office tobe located near the front office and wewould expect to be able to improve costeffectiveness and services to users byseparating the two over time.

The IAA Customer Service Centre in Leicester fields telephone calls on behalfof the IAA without the need for referral tothe tribunal hearing centre. This in turn freesup administrative staff at those centresto concentrate on their other duties. The sizeof the Tribunals Service will allow the use ofa dedicated support centre or centres, whichwill allow customers and others who needinformation to obtain it quickly and easily.

6.25 These radical developments oughtto mean that savings can be made on theestate, which will then become availablefor better services.

Dealing with the customer

6.26 We believe that there will be clearadvantages to users and their advisors ifthe essential unity of the new organisationis evident from the way in which the servicedeals with its customers. This would includesuch elements as:

• common terminology for processes;

• where feasible, common pathways throughthe process;

• common terms for administrative positions;

• common customer service standards;

• a standardised look to correspondence; and

• a single website and web strategy.

6.27 It is important that the new organisationhas a well-established and recognisablepresence on the web. The MORI surveyindicated that over half of users would bewilling to use the internet in connection withtheir case at least for some purposes. It shouldbe possible for a potential user, who is awareonly of the existence of tribunals in a generalsense, to navigate quickly and easily to sourcesof information about the specialist area in whichtheir dispute is located. There is also scopefor developing interactive services for usersand their advisers.


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6.28 While many users will not have webaccess a very high proportion of users’advisors will. And by advisors we do not justmean professional advisors, Citizens’ AdviceBureaux or trades unions, important thoughthey are for some jurisdictions, but thosemembers of the community such as MPs,local councillors, social workers, GPs andMinisters of Religion to whom peopleoften turn when faced with dealing with theunfamiliar. Above all it will be important thatthe Tribunals Service’s website works closelywith other key web based sources ofinformation such as the Community LegalService’s “Just Ask!” site18.

6.29 But we do not forget that many potentialtribunal customers will not have access toelectronic information via websites. For these telephone services and paper basedinformation will still be available. The size of theTribunals Service will allow the establishmentof a dedicated communications unit which willhave the expertise to produce material for alljurisdictions written in clear plain English, andin other languages and in a variety of formats.We will ensure that help is available from staffin a number of languages. The service will beable to make better use of interpreters. And itwill have a specific responsibility to support thework of those voluntary and charitable sectororganisations which help and advise users.We envisage, for instance, that the neworganisation will provide training, inter-changeof staff, varied consultation arrangements bothcentrally and locally and points of contact foradvisors to seek help.

Better information about the tribunaland appeals process

6.30 The type of information available about the tribunal and the appeals process varies.Creation of the new organisation provides anopportunity to standardise the informationprovided to users and to introduce betterlevels of service. But this work need not waitfor the creation of the new organisation.In advance of its launch, we will work withinformation managers in tribunals and withother stakeholders including the Councilon Tribunals and the advice community,to develop a model that represents best

practice for the content, structure and deliveryof information of this type. This work will startin October this year, and be known as theBetter Information Project.

Powers

6.31 Although the new organisation willdevelop innovative ways of working it will stillretain the right and duty to hold hearings. Noappellant will lose their right to a hearing. Allexisting tribunal powers to alter departments’decisions will remain in place. In addition thetribunal judiciary will be able to make commentsand suggestions on the way in which a personwas treated – were they dealt with quickly andcourteously? Were their concerns properlyconsidered? How could the department havedone better? The aim is that an individualshould be able to feel that all their concernshave been addressed although of course thetribunal judiciary will not be able to conduct indepth investigations in the way that anombudsman or an independent complaintshandler can. And if a decision in favour of anappellant is not implemented promptly theappellant will have the right to bring the matterback to the new organisation to get action.

Improving decision-making

6.32 We see the new organisation as having akey role in stimulating improvements indecision-making. The gains from suchimprovements are obvious. “Right First Time”means a better result for the individual, lesswork for appeal mechanisms and lower costfor departments. At present only the Presidentof the Appeals Service is under statutory dutyto provide feedback, through a publishedreport to the Secretary of State for Work andPensions. That report deals only with a sampleof cases emanating from DWP so does notcover decision-making by other departmentsor by local authorities. Other tribunals aresimply at the end of the process with no formalmachinery to feed back their views on decision-making or any expectation that their views willbe acted upon if they do. But there is an endto end process in all jurisdictions. All theparticipants in the system have a duty to makeit work better. We will therefore give the neworganisation the duty to publish its views and

18 www.justask.org.uk


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analysis of decision-making and will considerhow government and other decision-makersmight reply to these reports. Of course decision-making departments have a wider duty thanthe avoidance of disputes: they haveresponsibilities to all their users, including thevast majority who are not in dispute with them,and to the wider community, to provide just,efficient and cost-effective services of all kinds.The new tribunal organisation’s approach hasto be co-operative: it will not be able to dictateto departments as to how they do their work.But we will consider whether joint objectivesand targets should be set as this approachhas worked well in the criminal justice system.

6.33 With use of these mechanisms we would expect to see improvements in thefollowing areas:

• original decision-making;

• explanation of decisions;

• resolution of disputes without externalintervention; and

• availability of information to the public onhow to seek redress.

6.34 We intend that the new organisation will enter into agreements with the variousdecision-making departments which feed into it, setting out how together they intend to improve the end to end process. Theseagreements will be subject to approval by Ministers and will be reported to thereformed Council on Tribunals.

Organisational Design

6.35 So how will we structure the neworganisation to deliver these benefits?

6.36 Sir Andrew Leggatt emphasised theimportance of a reformed tribunal systemhaving a simple, clear structure. He concluded,however, that an undivided body would be impracticably large and diverse.19 Heconsidered that it would make it difficult orimpossible to preserve the expertise of bothmembers and staff of the existing tribunalsand to improve on both by training across so wide a field. His solution was to create aunified system but with individual tribunaljurisdictions allocated to divisions.

6.37 Our overriding aim in designing the newstructure is to bring together those functionswhich will help and improve the ability ofindividual jurisdictions to offer the best possibleservice to users, and to do so in a way whichproduces a cost efficient service. We thereforeneed to balance the gains and efficiencies fromdoing things with as much commonality ofprocess as possible with the need to preservethe inevitably specialist features which stemfrom differing issues, different law and differingusers. Our aim is to create a unified anddistinctive system but it will need aspects of afederal structure. The degree of autonomy ofindividual jurisdictions within the structure willbe a matter for the unified organisation itself todetermine, within a statutory framework andtested by a simple criterion: what is best forthe users? Where areas of law are convergingit may make sense to link jurisdictions moreclosely. For instance, changes to the tax andbenefits system have brought tax law andsocial security law closer together, and thisshould be reflected in the way in which thesejurisdictions are organised. Conversely,employment law remains very distinct and thenature of the disputes very different and so theEmployment Tribunals and the EmploymentAppeal Tribunal will continue to maintain a strongdegree of administrative separation, maintainingand strengthening their relationship with Acas and with their key stakeholders.

6.38 We think the formal divisional structureenvisaged by Sir Andrew Leggatt isunnecessary in the light of the limited numberof jurisdictions which will form the newservice in its first phase and might obstructflexibility and worthwhile developments.Individual jurisdictions will maintain theircurrent statutory existence but the extent towhich they show a separate face to thepublic will depend on an assessment to bemade from time to time by the organisationas a whole as to which is the most helpfulapproach from the point of view of the user.

A manifestly independent and moreflexible judiciary

6.39 Around 6,000 tribunal panel membersand judiciary currently sit on tribunals eitherfull time or part time. Each is appointed

19 paragraph 6.3 p.67


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to a particular tribunal. Usually there is aPresident to provide an oversight of judicialmatters for the tribunal.

6.40 This system of separate tribunals is often inefficient and inflexible, so users loseout. Uncertain and fluctuating workloads makerequirements for judicial numbers difficult toforecast and the current system of manydifferent appointment competitions tendsby its nature to be unresponsive and slow.Tribunals may either be faced with shortages,giving rise to delay, or with members who donot sit frequently enough to maintain theirskills and knowledge. The use of fee paidmembers is one way of addressing this but ifthey are to be effective, they need to sit on areasonably regular basis. The current systemcannot always guarantee this.

6.41 But aside from the inefficiency ofsuch a system, this is not a structure thatpromotes and develops the skills andexperience a modern system of tribunalsrequires and is entirely unsuited for theradical new approaches to dispute resolutionwe intend to encourage.

6.42 Tribunals are also faced with what hasbeen described as ‘fishing in the same judicialpool’, that is competing for suitably qualifiedtribunal members in spite of disparate termsand remuneration, leaving those who cannotoffer competitive terms at a disadvantage.

6.43 When the judiciary and other panelmembers have been recruited, tribunals havestill to face the challenge of training them.Responses to the Leggatt consultation exerciseconfirm that some tribunal members do notconsistently meet users’ reasonableexpectations of their inter-personal skills andtheir ability to make proceedings accessibleand comprehensible. Some tribunals havetraining budgets; many of the smallertribunals struggle to find the cost of thenecessary training.

6.44 Equally, the tribunals’ approach to theappraisal of members is not uniform; some do not do it at all, whereas others do it todifferent standards.

Single judicial offices

6.45 We will create a single judicial office for those sitting in first-tier tribunals, and

another for those sitting in the appellatetribunal. All the legal members from thecentral government jurisdictions which arebeing brought together in the new service willbe transferred to the new offices and all newappointments will be made to the newoffices. To reflect the judicial status of theseoffice holders we intend to rename them‘Tribunal Judge’ and ‘Tribunal AppellateJudge’ respectively.

Appointment, Assignment and Deployment

6.46 The normal career path for a lawyerinterested in a tribunal judicial appointmentwill start with an application for a fee paidappointment. Recruitment to vacancies will beby fair and open competition. Advertisementswill specify the jurisdictions for which recruitsare required and applicants will specify whichjurisdictions they wish to serve in initially. Onappointment, new members will be assignedto a jurisdiction or jurisdictions where thereis an operational need provided that therecruitment board has assessed them asqualified for that jurisdiction.

6.47 The Lord Chancellor already appointsaround 60% of tribunal panel members – notjust legal members but, for example, medicalmembers of the Appeals Service tribunalsand the Mental Health Review Tribunal. Butthis leaves a number of tribunals where theMinister with responsibility for the originaldecision (or for the policy concerned) alsoappoints panel members, pays them andruns the tribunal. While those who sit intribunals are independent of departments,and make this clear at hearings, the currentarrangements mean that independence is not as manifestly clear as it should be.

6.48 At the heart of our proposals is thebelief that in a modern democratic society it isno longer acceptable for judicial appointmentsto be entirely in the hands of a GovernmentMinister. Therefore we intend to build uponthe principles behind the establishment ofa Judicial Appointments Commission and toplace under the remit of the Commission theresponsibility for recommending candidatesfor appointment to all tribunal panels withinthe service, be they legal or other members.In line with other judicial appointments, these


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recommendations will be made to theSecretary of State for Constitutional Affairs.Where currently government ministers receiveexpert advice on the appointmentof particular categories of expert members,such as the Royal Institution of CharteredSurveyors for the appointment of surveyormembers to the Lands Tribunal, this role willbe built into the processes of the JudicialAppointments Commission.

6.49 The Scottish Executive has alreadyaccepted the case for an independent elementin judicial appointments and in 2002 theyset up the Judicial Appointments Board, anadvisory body which makes recommendationsto the First Minister. So far, the Board’s remitextends only to the appointment of judges,sheriffs principal and sheriffs. In addition,the Lord President of the Court of Session,Scotland’s senior judge, has responsibilityfor certain tribunal appointments in Scotland,and Scottish Ministers also have a numberof functions in respect of appointments toreserved tribunals. Our plans for developmentof the system of appointments will need totake account of the separate arrangementswhich are already in place in Scotland.

6.50 The Judicial Appointments Commissionwill also be responsible for a similar process to that described in para. 6.46 where a feepaid judge seeks a salaried appointment andwhere tribunal judges seek appointment astribunal appellate judges or as jurisdictionalpresidents or other judicial managerial posts.Our intention is that there should be thepossibility of promotion to higher office within the tribunals’ world.

6.51 Within the single judicial office we willencourage legal members, both fee paid and salaried, to seek to sit in more than onejurisdiction where there is an operational need.But it is essential for the maintenance of highquality decisions and public confidence in thenew organisation that everyone who sits in aparticular jurisdiction has the necessary skillsand specialist expertise. Sitting in more thanone jurisdiction will not be automatic. Controlover assignment to more than one jurisdictionwill rest with the senior judicial figures withinthe tribunal organisation – typically the SeniorPresident and the President of the particularjurisdiction or another judge acting on his orher behalf. The Judicial Appointments

Commission will not be involved in thesedecisions but there will have to be anestablished process for the decisions whichwill need to reflect certain key principles:

• the process must be open and transparent;

• it must recognise merit, linking in tojudicial appraisal;

• there must be safeguards to ensure existingstandards are not weakened; and

• assignments will be linked tobusiness needs.

6.52 This does not represent a significantdeparture from current practice – more arecognition of what happens at present and anopportunity to create a coherent and efficientframework. Even with the present system ofappointments, around 20% of panel membersare appointed to more than one tribunal. Thetribunals that they sit on are often completelyunrelated in terms of subject matter – there isfor example a significant number of memberswho hear both employment and asylum cases.But this does not preclude a high level ofspecialisation where appropriate, particularlyfor fee paid members. However, the numbersof fee paid judges need to be constantlyreviewed to ensure that each sits frequentlyenough to maintain a high level of expertise.

6.53 The structure will provide a frameworkfor providing users with consistent standardsof decision-making and other skills. It will notput in place a single panel but it will createover time a single corps of tribunal judiciary.This will also allow the profile of tribunaljudicial office to be recognised and raised. We would also expect a system of this kind to deliver a body of tribunal members who areas genuinely diverse as the society they serve.

6.54 Deployment of individual judges toparticular locations and cases will be a matterfor presidents and other judicial managers,working in partnership with staff, but subjectto the overriding rule that only those who havebeen assigned to a particular jurisdiction candeal with cases in it. The new structure wouldbe more flexible and so make it easier forjudicial managers and staff to allocatemembers to hearings and list cases to them.This will help to deliver the goal of promptservice to users. The balance betweensalaried and fee paid judiciary will be a


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matter for the new organisation itself butsubject to resource considerations.

6.55 We also intend to encourage greaterinterchange with the courts’ judiciary. Salariedjudges will be treated as if they are holders ofthe appropriate type of tribunals’ single judicialoffice but will sit on tribunal cases only insofaras they are assigned to a jurisdiction by theorganisation’s own assignment machinery,as outlined in para. 6.51.

6.56 The appointment, assignment anddeployment machinery will need to reflect notjust the need for expertise in particular areasof law but the different legal contexts forspecialised areas in Scotland, Wales andNorthern Ireland.

6.57 What must be put in place to deliver sucha system? We set two key requirements forthe new Tribunals Judicial System: goodleadership with an appropriate structure ofregional and judicial support and a frameworkof appropriate terms and conditions to reflect thenew arrangements. We consider these in turn.

Judicial leadership

6.58 Sir Andrew Leggatt suggested that itshould be the task of tribunal presidents topromote by leadership and co-ordination,consistency of decision-making anduniformity of practice and procedure. Hefurther recommended the creation of a postof Senior President to head the tribunalsystem, suggesting that he or she shouldbe a High Court Judge sitting in one of theAppellate Tribunals. He did not go on todescribe in detail what the role of a SeniorPresident might be but it is clear that thepresent tribunal system suffers fromfragmented leadership in comparison withthe criminal and civil jurisdictions.

6.59 Without a clear single voice able tospeak for the tribunal judiciary collectivelythere is a danger that proposals for thereform of the administration of tribunals willbe developed in isolation or without takingon board the needs of all the disparatejurisdictions in the new organisation. Such ascenario will only hamper the developmentof an effective partnership between thejudiciary and administrators. Therefore, weintend to establish in legislation the office

of Senior President of Tribunals with directresponsibility for all tribunals within thescope of the new system.

6.60 In the immediate future the role of aSenior President is strategic, co-ordinating anddirecting judicial input into the development ofthe Tribunals Service. When the new system isoperational the Senior President will have amajor role in setting its direction, developingnew services and balancing the judicial needsof the individual jurisdictions.

6.61 In order to ensure the necessaryleadership, we believe that the SeniorPresident should have knowledge, experienceand standing equivalent to a Lord Justice ofAppeal. This appointment would be on a parwith the Deputy Head of Civil Justice or theSenior Presiding Judge in England and Wales.We therefore intend that the appointmentwould be made by the Lord Chief Justice ofEngland and Wales but with the concurrenceof the Lord President of the Court of Sessionand the Lord Chief Justice of Northern Ireland,reflecting the UK wide remit of the role.

6.62 Individual jurisdictions will continue to have presidents, although a number ofjurisdictions may be combined for this purpose,as, for instance, happens now with some taxand finance tribunals. Their key role will be toprovide judicial leadership within the individualjurisdictions, safeguarding and developingexpertise and providing a major input intojudicial training and appraisal. These positionswill either be held by High Court Judges or willbe filled by competition among suitablyqualified applicants. Where circumstanceswarrant it there could also be regional tribunaljudges who will be responsible for judicialdeployment across a geographic area,working with the local administrators.

6.63 How might this work in practice? We envisage that in a region there wouldtypically be a small team of salaried judges and a much larger team of fee paid tribunaljudges. Each will have been appointed to aparticular jurisdiction or authorised by theappropriate jurisdictional president to sit inparticular jurisdictions. Some, particularly thefee paid, may only sit in one or two. Othersmay have been approved to sit in more. Theregional tribunal judge, working with thesenior local administrator for the region,


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would have the responsibility of balancingthe needs of the various jurisdictions acrosshis or her region in order to meet whateverobjectives and performance targets havebeen set either for the system as a wholeor for individual jurisdictions within it. Theregional tribunal judge would also have arole in appraisal of generic judgecraft skillsbut would not be expected to assess thetechnical legal expertise of members of theirteam who sit in jurisdictions with which theyare unfamiliar.

6.64 Presidents and regional tribunal judgeswill also have a key role in liaison with usersand decision-makers.

The role of non-legal members

6.65 A distinctive feature of tribunals is the use of a combination of skills andbackgrounds on a panel. This is achievedthrough appointing non-legal members suchas doctors, accountants or surveyors, orpeople with practical experience of, forinstance, employment relations or service inthe armed forces. This is intended to ensurethat the tribunal has the expertise, knowledgeand experience to do justice to a case.

6.66 The proposals described above for asingle judicial office coupled with an assignmentsystem only apply for the present to legallyqualified members. Other members will stillbe part of a unified tribunal judiciary, underthe leadership of the Senior President, but wewill look to analyse in greater depth the role ofall types of member across a range of tribunalsin the new system. We will seek to identifyways in which they could be deployed moreflexibly to the benefit of users and the deliveryof justice. Clearly there would be advantagesin extending an assignment system to allcategories of tribunal member. It would reducerecruitment costs and allow full utilisation ofthe flexibility presented by creating a unifiedappointment and assignment system, soimproving the speed and flexibility of the serviceprovided to the public. However, we are developinga new type of organisation and need to reviewthe role of non-legal members as a whole.

6.67 There are three issues. First, there is anissue over what precisely the role of non-legalmembers should be – is it to add balance to

the panel? Or to ensure particular interests arerepresented? Second, for expert members afurther area that needs to be developed iswhether in fact it is desirable for a tribunal tohave a particular expert on the panel asopposed to being available as a witness forthe tribunal. Where an expert member carriesout his or her own examination or investigationsthe parties are unable to question thatmember or rebut his or her conclusions.Indeed it may even give the impression thatthe tribunal will favour the views of that expertover the case findings of witnesses who areequally expert. Third, there is a question as towhat role non-lawyers can and should play inthe new alternatives to hearings which weintend the new service to develop.

Rationalisation of Terms and Conditions

6.68 The creation of a unified judiciary and the establishment of a unified appointment for legally qualified members will bring with it a need to rationalise over time the terms and conditions for all tribunal judicial officeholders. The current arrangements havedeveloped piecemeal reflecting market forcesand differing departmental approaches.

6.69 To ensure that a rationalised system isdeveloped in a manner consistent with otherjudicial appointments the Senior Salaries ReviewBody will be invited to review the remunerationfor the tribunal judiciary and offer advice.

6.70 For non-legal members the remunerationwill be considered as part of the review of theirrole to ensure that any of the currentdiscrepancies between similar appointmentsappropriately reflect differences in the role. Thiswill not, however, be a levelling up exercise.

Training

6.71 Sir Andrew Leggatt identified in hisreport that “the principal way to address thefundamental issues that confront tribunalsis by training”20. He referred to the TrainingNeeds Analysis (TNA) carried out by theJudicial Studies Board (JSB), therecommendations from which have resultedin the development of the CompetenceFramework for Chairman and Members inTribunals, the Framework of Standards for



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Training and Development in Tribunals, theFundamental Principles and Guidance forAppraisals in Tribunals and Guidance onMentoring in Tribunals.21

6.72 These frameworks and guidancecomplement and underpin the Council onTribunals Framework of Standards forTribunals22 and taken as a complete package,they form the basis for a systematic and effectivecompetence-based approach to consistenttraining and development in tribunals.

6.73 We expect the new tribunal organisationto seek to build on this work in partnershipwith the JSB and the Council on Tribunals.The Senior President and jurisdictionalPresidents will be responsible for ensuring thatall tribunal members are properly trained.

6.74 There will be a strong emphasis placedon training in judgecraft skills for all judgesand members, based around the skills,knowledge and attributes identified for thejudicial role. This role in itself is likely to evolveas new forms of dispute resolution grow up.Members may need to learn mediation skillsand how best to use staff to help resolvedisputes without the need for formal hearings.

6.75 The Senior President and the jurisdictionalPresidents will have the prime responsibility forensuring that all new members of the judiciaryare fully trained before they sit, in bothjudgecraft skills (in the broadest sense) and inthe law and procedure related to the jurisdictionor jurisdictions in which they will sit. We willexplore with the JSB mechanisms for ensuringthat such training is provided to an appropriatestandard and we will consider whether theBoard should provide induction training injudgecraft skills for new legal members if theyare not already suitably experienced. All newmembers should also have the benefit of thesupport and guidance of a trained mentorduring their induction and the benefits of furthermentoring will be explored with the JSB,particularly where members require support to take on new and additional roles. Existingmembers will need to undertake training asnecessary throughout their careers. All trainingwill be subject to monitoring and evaluation sothat the senior President and jurisdictionalPresidents can be assured that it is organisedand delivered consistently within a nationally

agreed framework of standards. Some tribunalsalready have training judges and this may wellprove an effective approach more widely.

6.76 Where issues impact acrossjurisdictions we will explore with the JSB andthe tribunals scope for increasing the range ofgeneric training for panel members in additionto that provided for legal members to helpfoster a unified judicial culture and to engenderthe sharing of good practice and approachacross jurisdictions.

6.77 We recognise that many Presidents andChairs, particularly in the larger jurisdictions,undertake a range of duties in addition tositting. The JSB has begun to design trainingfor Presidents and Regional Chairmen in‘management’ skills. We will look to buildupon the work already carried out toadequately prepare the tribunals judiciary forthe increasing and varied demands placedupon them in the 21st century.

Appraisal

6.78 At the heart of any appraisal system is a desire to ensure standards are maintainedand raised. This is of profound importancenot only to the user of the tribunal but alsoto the taxpayer. Appraisal can be used toensure that new members acquire thecompetencies required for their role throughappropriate training and that existingmembers maintain their skills and improvethem to the benefit of the user.

6.79 The Appeals Service, the immigrationappellate authorities and the ResidentialProperty Tribunal Service (RPTS) haveintroduced appraisal systems, and others,such as the Criminal Injuries CompensationAppeals Panel, are now developing andintroducing systems

6.80 We accept Sir Andrew’s recommendationthat all chairmen and panel members shouldparticipate in a review of their performancewhile sitting.23 The JSB’s FundamentalPrinciples and Guidance for Appraisals inTribunals draws together the good practicedeveloped in tribunals and sets out a commonframework for a coherent system of appraisalacross tribunals. We aim to build on thiscommon approach. We are committed toensuring that there is a consistently high

21 www.jsboard.co.uk22 www.council-on-tribunals.gov.uk23 Recommendation 161, paragraph 7.38


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standard of decision-making across alltribunals – providing the platform for effectivedeployment of judicial resources, providingtransparency to the system and embeddingthe principle of assignment on merit.

6.81 Appraisal is a complex and sensitive twoway process. The appraiser must have the rightskills to do the task effectively and must havea sufficient understanding of the recipient’s workfor the latter to have confidence in the appraiser.In tribunals, in addition, the important value ofjudicial independence from the Executive mustbe maintained. This suggests that only thejudiciary can properly and effectively appraisetheir colleagues but a skilled appraiser shouldalso know how to gather in the views of thoseaffected on the person he or she is to appraise.

Administration

6.82 The tribunals judiciary will be supportedby and work in partnership with a separateexecutive agency in DCA, distinct from thecourts but benefiting from close links withother branches of the justice system andprovisionally known as the Tribunals Service.

6.83 The agency will provide all thenecessary administrative backup to tribunaljudges and other members, in partnershipwhere appropriate with other organisationsand the private sector. We anticipate that thisbackup could where appropriate includemanaging and assisting settlement under thegeneral direction of the judges. This implies awider range of functions for staff than in generalis the case with the current executive agenciesand administrative structures which will beabsorbed into the Tribunals Service. And itimplies new ways of working for both staffand judiciary.

6.84 Although other organisational modelshave over the years been used for courts andtribunals, experience in DCA, DTI and DWP,and particularly the experience of the CourtService, has shown that the executive agencymodel works best to deliver cost-effectiveservices to the judiciary and the user.

6.85 The administration will be led by a ChiefExecutive whose role will include championingcontinuous improvements in customer serviceto be delivered by a cost-efficient organisation.The Chief Executive will be answerable to theSecretary of State for Constitutional Affairs, andultimately to Parliament, for the administration of

those tribunals falling within the new service.Within the Agency, the Chief Executive will havehis or her own management team, which will becollectively responsible for setting the strategyand monitoring the performance of the Agency.It will be focused on operations, however, withmost of its necessary supporting servicesprovided by the appropriate corporate functionsprovided by DCA. This will allow the service totake full advantage of corporate strategies forIT, estate and procurement. Above all the ChiefExecutive will have the key role in developingthe people who will make up the Agency,pioneering new approaches and motivatingstaff to create a real working partnershipto deliver a new service to the public.

6.86 Like other executive agencies, theTribunals Service will have a frameworkdocument setting out its aims and objectives.It will publish an annual business plan andpresent its accounts via an annual report.It will set and publish annually its targetsfor performance against a set of agreed keyperformance indicators and its subsequentachievements against them.

6.87 The Chief Executive and the managementteam will work in close partnership with theSenior President and the jurisdictionalPresidents. The Senior President will haveresponsibility for judicial functions and sowill remain independent. This partnership isabsolutely essential for the success of the neworganisation as a whole. The judiciary cannotas a matter of constitutional principle beaccountable to government and Parliamentfor judicial decisions in the way that the ChiefExecutive and the other civil servants withinthe organisation are, but, from the pointof view of the user, judiciary and staff aredelivering a service together. The governancearrangements within the new organisation needto reflect the joint nature of this endeavour.

6.88 Governance arrangements will alsoneed to reinforce the organisation’scommitment to the user. A single bodyrepresenting all significant user interestswould probably not be feasible in view of thewide and disparate nature of the jurisdictionswithin the new organisation but we will placean obligation on the Senior President and theChief Executive together to propose toMinisters governance machinery which willfocus the organisation on the user andprevent it from becoming inward-looking.


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6.89 The key performance indicators for thenew service will be focussed on the needs ofusers. We have taken as a starting point whatwe think users are entitled to from the

service, set out in para. 5.1 above. For thosecases that do come before a tribunal, theindicators could look like this:

Scope of PotentialMeasurement

Customer satisfaction

Tribunal ProcessAppeals Process

Customersatisfaction

Geographic access

Opening times

Building access

Technologicalaccess

Service access

Hearing centrelayout


Common standards


Response times


Training

Appraisal


Consistency

Comprehensibility


Caseload

Resource Usage

Customer ServiceCosts

Sample Potential KPIs

– % of users satisfied with independence of outcome or process

– % of user complaints raised relating to failure in independence

– Average waiting time from lodgement to disposal

– % of new cases processed in target number of days

– Waiting time for first hearing– % of decisions dispatched in target

number of days– % of customers satisfied with waiting times

– % of hearing centre visits meeting target travel times

– % of customers satisfied with session hearing time

– % of hearing centres meeting Disability Discrimination Act Standards

– % of hearing centres offering video-conferencing

– % of hearing centres offering translatorservices

– % of customers satisfied with hearing centre facilities

– % of customers satisfied with informationreceived about tribunals process

– Proportion of tribunals with accreditation for use of plain English

– Response times to letters, faxes and emails– Response times to phone calls– % of customers satisfied with the

helpfulness of the response received

– Customer complaints re daunting nature of hearings

– Customer complaints re formalityor impersonal nature of hearings

– Proportion of tribunal services using a standard appraisal system

– Number of customer complaints received

– Number of appeals received againstfirst tier decisions

– % of cases resulting in appeals against first tier decisions

– % of customers satisfied withcommunication of decisions reached

– Number of cases– % utilisation of hearing centres– % of customers satisfied with overall service– % increase/decrease in service costs

from previous period

Objectives

Tribunals that aremanifestly independent from those whose decisionsthey are reviewing

Appropriate waiting times

Accessible HearingCentres with modernfacilities

Easily navigable, compre-hensive and comprehen-sible information aboutthe tribunals and appealsprocess

Quick and helpfulresponses fromadministrative staff torequests for informationor complaints

Accessible hearingswhich are not daunting orlegalistic

Independent and skilledtribunals judiciary

Consistent andcomprehensible decisions

A cost effective servicethat provides good valueto the taxpayer

Potential future key performance indicators


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6.90 These are by way of example only:precise indicators will need to be formulatedwith careful regard to the principles of judicialindependence as well as accountability fordelivery. Equally, a mature approach toassessment requires quantifiable measures of this kind to be balanced by more qualitativeanalysis, ranging from focus groups andacademic research to the organisation’sstanding in the eyes of Parliament, the publicand knowledgeable international observers.

Staff

6.91 Because of the current administrativearrangements for tribunals, careerdevelopment for tribunal staff tends tomean moving between tribunal and parentdepartment – though the business of eachmay be very different. In the future we willhave created a significant body of tribunalstaff (the largest tribunals together currentlyemploy almost 3000 staff) who will work inDCA alongside the staff administering thecourts – with whom their work has muchmore in common. This will promote thedevelopment of a proper career structurein courts and tribunals with relevantspecialisms within it.

6.92 The new organisation will deal with a vast range of cases from the relativelystraightforward to the legislatively complex. So staff must be available to specialise inparticular jurisdictions to ensure individualcases get the handling they require. Weenvisage that the judiciary will be able todelegate responsibilities to staff to managecases and seek resolution of disputes, underjudicial supervision. While the task of makingfinal and authoritative rulings must rest with the independent judiciary we anticipate thatthis new organisation will develop innovativeways of delivering services, using its staff increative and original ways. This should meanthat the new organisation will be able to offer a much wider range of career opportunitiesthan the present arrangements. Some will offer frontline services to the public, withsuitable training and qualifications incustomer service. Others will work in closesupport to the judiciary. Some staff will beworking on the development of the usualrange of corporate functions, others will

be specialists in particular subjects andjurisdictions. Some will be working closelywith departments and agencies to helpimprove their decision-making and redressarrangements; others will be working withthe voluntary sector to improve the supportgiven to users of the new services.

6.93 But whatever their role in the neworganisation, all staff should regardthemselves as belonging to the TribunalsService. They will all be civil servants, willhave, in time, common terms and conditionsand will be within DCA’s overall pay andgrading structure.

Naming the new system

6.94 The overarching judicial organisation in partnership with an executive agency isin many respects a new type of institution,bringing together a number of establishedtribunals with a mission to improve servicesto users and the community. We believe itshould have a distinctive title which willrapidly be recognised by the public and theiradvisers. Individual tribunals will still ofcourse retain their legal identity but theextent to which they will be referred to bya specialist name or by a generic title mustdepend on what is best for promotingaccessibility for the user.

6.95 We would welcome views on what the new title should be. There is a case foravoiding the word ‘tribunal’ in the title, partlybecause not all the bodies in the new systemare, strictly speaking, called tribunals, butmainly because there is some evidence thatmany of the public find the term ‘tribunal’misleading or even daunting. We want toemphasise what the new body is trying toachieve, not to find some kind of commondenominator among its component parts.Words and phases like independent, justice,service, rights and dispute resolution mightwell send the right message to the public.


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7.1 The procedures and processes of the new tribunal system need to be viewedsystematically to ensure that they are allgenuinely focused on achieving justice for the user. To that end, we intend to place the system under a statutory obligation,derived from the Civil Procedure Act 1997, to establish rules and procedures whichsecure that the system of redress provided bythe new organisation is accessible, fair andefficient. This will apply both to the proceduralrules governing tribunal hearings, to lessformal alternatives to hearings and to the casemanagement and administrative processes.

Tribunal rules and procedure

7.2 At present tribunal rules can be complex,while the language used can be confusing toordinary users. In addition, the work of thoseproviding advice and support to users is mademore difficult by the differences in procedurebetween tribunals. By simplifying rules andprocedures, we can deliver real benefits. Andthe accusation is sometimes made that wherea department has rule-making powers it doesnot strike a proper balance between thedepartment and the user.

7.3 Sir Andrew Leggatt recognised the need for simplification and overhaul of tribunal rules, recommending as a startingpoint the Council on Tribunals Model Rulesof Procedure, now the Guide to DraftingTribunal Rules. There is a clear consensusamongst tribunal judiciary that while specialistrules, where they are necessary for thejurisdiction, can still be retained, a muchclearer, codified system can be developedto cover many tribunals. And the governmentaccept that the manifest independence oftribunals means that departments cannot be ina position to make rules in their own interests.

7.4 As tribunals transfer into the neworganisation responsibility for making theirrules will transfer to the Secretary of Statefor Constitutional Affairs, concentrating

authority for the majority of tribunal rulesin one office, except that responsibility foremployment tribunal rules will remain withthe Secretary of State for Trade and Industry.This is because the Secretary of State forTrade and Industry is not in general aparticipant in employment tribunal casesbut does have the overarching policyresponsibility for employment relationsof which the employment tribunalsystem is a part.

7.5 Where the rule making power has beentransferred to the Secretary of State forConstitutional Affairs we intend to bring theprocess for making tribunal rules into line with the processes for the civil courts. In thecivil courts rules are made by a statutoryprocedure committee with members drawnfrom the judiciary and practitioners. The rulesare then subject to the approval of the LordChancellor. If Parliament approves theConstitutional Reform Bill, which abolishesthe office of Lord Chancellor, the power toapprove rules will transfer to the Secretary ofState for Constitutional Affairs, who will alsohave the right to require the committee tomake rules in order to achieve a specifiedpolicy outcome. This is the model which weintend to adopt for tribunals. We will thereforecreate a tribunals procedure committee.

7.6 The committee itself will be constitutedfrom a core membership, comprised of theSenior President, an appellate tribunal judge,a tribunal judge, a representative of theCouncil on Tribunals and, importantly, arepresentative of tribunal users. There are alarge number of tribunal jurisdictions, and todeal properly with specialist areas a flexibleform of supplementary membership will beneeded to ensure that all relevant interests are considered, including the need to reflectScottish and Northern Irish law. We intend that the Secretary of State for ConstitutionalAffairs will have the same powers overtribunal procedure as he will over courtrules under the Constitutional Reform Bill.

7 Procedure and Processes


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7.7 The committee will have the duty topromote greater consistency between tribunalsand restrict use of legalistic terminology. The inclusion of Council on Tribunals and user representatives on the committee shouldensure that rules are easier to understand.

Case management

7.8 Where cases are still to be dealt with by way of a hearing we intend that tribunals will be able to find better ways of preparing so that unnecessary adjournments and latepostponements are the exception.

7.9 Staff will work in close partnership withjudges and other members to ensure that all the relevant material and information isavailable on the day and that any extraneousissues have been dealt with in advance. Thiswill require panel members and the judiciary to play an active role in case managementto avoid either party delaying the progressof a case without good cause or for their ownends. This is no less true, perhaps even morenecessary, where that party is a governmentdepartment or public body. We will ensurethat the tribunal procedure committee willbe able to give judges and staff sufficientsanctions and powers to carry out this role,such as the power to prevent a party whohas not done what they should have donefrom carrying on with the case. However,sanctions are a last resort, of greaterimportance will be the ability and willingnesson the part of the new organisation to spreadbest practice and to take the lead inestablishing agreements with departmentsand professional bodies as to the speedand manner of handling cases.

7.10 We also expect that the flow of appealsthrough the system will improve through theapplication of case management techniques.The use of case management techniques inthe civil courts is now a long accepted fact.Although there are clear differences betweenthe civil courts and tribunals, not least in thelevel of legal representation, many tribunalsuse some of the approaches to ensureappeals move through to resolution in a timelymanner. However, their use is not consistentand where tribunals effectively manage toreduce waiting times, the lessons learnt arenot always shared with other tribunals.

7.11 The ability to manage cases implies that the tribunal controls the process. At present appeals in some administrative law jurisdictions, particularly tax and socialsecurity, are lodged with the department, not the tribunal. This enables the departmentto review its decision immediately and soresolve the dispute without the necessity ofinvolving the tribunal. Where the departmentdoes reverse its decision or reach an amicable settlement this is obviouslypreferable from everyone’s point of view. But such an arrangement is not acceptable if the department’s control over this stage of the process enables it to delay resolution or put pressure on the appellant to give up.The process must provide strong safeguardsagainst this.

7.12 One solution might be for appellantsin all administrative justice jurisdictions tolodge their appeals electronically at acommon point serving both the tribunal andthe department. The department can thenmove immediately to review and negotiation(if appropriate) and the Tribunals Service staffwill be able to track progress. The procedurecommittee would set time limits within whichthe department is free to take the initiative;after that the judiciary and staff of the newservice would control the pace of events. Theappellant would be told at the outset how hisor her case will be handled and that he orshe always has the right to ask the TribunalsService to expedite a case.

7.13 Until we are in a position to offer this fully IT-enabled facility it would probably be expensive and inefficient to transferthe function of receiving appeals in everyjurisdiction to the Tribunals Service. It wouldslow up the process without conferring anyreal benefit on the user. Instead, in theinterim, departments whose tribunalshave transferred to the new system willcontinue to receive appeals but subjectto agreements as to how long review andnegotiation are to take, what information isto be given to appellants and how users andthe public are to be assured that cases arebeing properly handled.


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A more coherent system of appealsand reviews

7.14 The current approach to second-tierappeals has been described by both LordWoolf and Sir Andrew Leggatt as a“hotchpotch”. It has developed alongside the unstructured growth of the tribunalsthemselves. Some tribunals have an appealroute to another tribunal; some do not.Relationships with the higher courts also vary.

7.15 We propose to establish a simple andcoherent appellate system, based upon theprinciple that tribunal cases should only go to the courts when issues of the weight andimportance normally decided by an appealcourt need to be resolved.

7.16 In most cases we would expect thatthe decision of the first instance tribunalwill be accepted. With the exception ofimmigration and asylum cases, this is whathappens now. Where there is need for anappeal we believe that the appropriate forumfor decision is (with some exceptionsdetailed below) an appellate tier within thenew tribunal structure. This will become thenew default position. This will mean changesfor some tribunals, particularly the taxtribunals and our proposals for them arediscussed in Chapter 9.

7.17 Within the new appellate tier, theEmployment Appeal Tribunal will maintainits distinctive identity. Appeals from firstinstance tribunals in the administrative justicearea will go to a new appeals tribunal. Thiswill bring together the jurisdictions of theSocial Security and Child SupportCommissioners, the Lands Tribunal, theTransport Tribunal and the new upper tierof the reformed tax tribunals. Within thenew appeals tribunal the same assignmentprinciple as set out earlier in respect of thetribunal and judiciary will apply – that is, anindividual tribunal appellate judge will only sitin jurisdictions to which he or she has beenappointed or assigned. However, we wouldexpect over time that some parts of theappeals tribunal will draw closer together.For instance, even now, the Social SecurityCommissioners would welcome theassistance of the kind of expertise held by theSpecial Commissioners of Income Tax, and

Special Commissioners would welcome theexpertise of Surveyor Members of the LandsTribunal. The administrative appeals tribunalwill also be available to take on appeals fromtribunals in England and Wales where theappeal would otherwise lie to the High Courteither by way of statutory appeal or judicialreview. Its composition, including the use ofnon-legal members, would vary according toneed and type of case. We would welcomeviews on what the new appeals tribunalshould be called. At present we favour theAdministrative Appeals Tribunal.

7.18 There will be exceptions to the twotier structure described above.

• where the first appeal to a tribunal isfrom an independent body rather than agovernment department we do not thinkit is necessary to provide a second tier ofappeal. This would apply to the FinancialServices and Market Appeals Tribunal andthe Criminal Injuries CompensationAppeal Panel;

• The Special Immigration Appeals Commissionand the Proscribed Organisations AppealsCommission deal with a small caseload ofcomplex and sensitive cases. They arepresided over by a High Court Judge andhave a direct line of appeal to the Court ofAppeal. Because of the unusual nature oftheir jurisdictions we do not intend thatthese two bodies should be brought withinthe new judicial organisation although theiradministrative backup will be supplied bystaff from the new service; and

• The Asylum and Immigration Tribunal (AIT)is a new body being created by the Asylumand Immigration (Treatment of Claimantsetc) Bill. It has been created as a single tierorganisation in part to reduce the impactof the abuse of the present two tier appealsystem in asylum cases. It would becontrary to the underlying principles for thecreation of the AIT if an appeal were to liefrom it to another tribunal;

7.19 To discourage unmeritorious appealswe will also introduce a permissionrequirement. This requirement will be similarto Section 54 of the Access to Justice Act1999. We will also introduce a power forjurisdictional Presidents to establish ways


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of reviewing tribunal decisions, to avoidmistakes having to go to the appeals tribunal.An appeal from a first instance tribunalshould generally be limited to a point of law,although for some jurisdictions this may inpractice be interpreted widely, for instanceto allow for guidance on valuation principlesin rating cases. The general principle is that anappeal hearing is not an opportunity to litigateagain the factual issues that were decided atthe first tier. The role is to correct errors andto impose consistency of approach.

7.20 To enable the appellate tier to properlyfulfil its role in achieving consistency in theapplication of the law and so as to encouragethe development of precedent across tribunals,a series of common principles with regard toprecedent will be developed in partnership withthe jurisdictional Presidents. This will promotea common view of how these issues should betackled across jurisdictions, but leave scopefor a flexible approach in particularjurisdictions. To prevent uncertainty, it willhave to be clear whether and how existingprecedents are affected by any change.

7.21 For tribunal users, this will providea system that is quicker and simpler tonavigate. For those tribunals where there iscurrently no right of appeal or review, we willintroduce one. For the taxpayer the systemwill be more efficient, with more casesremaining within the tribunal system.

Membership of the appellate tier

7.22 The appellate tier will initiallybe constituted from the jurisdictionalPresidents, and the panel memberswho currently sit in appellate tribunals,supplemented where appropriate by amixture of High Court and Circuit Judges(and possibly their Scottish and NorthernIrish equivalents) seconded to the tribunal fora period of time. We anticipate that in timethere will be some direct appointments tothis tier and some tribunal judges promotedto it. But we also think it is important thatthe more senior members of the tribunaljudiciary should bring their expertise to bearon selected first instance appeals as well so

we anticipate that tribunal appellate judgeswill also sit at first instance.

7.23 The decision as to which casesmerit this kind of treatment will be partlydetermined by the tribunals procedurecommittee and partly by case by casedecisions by jurisdictional Presidents. Ifthe reason for assigning a case to a tribunalappellate judge is to provide authoritativeguidance or because it is likely that the casewill be taken on to the Court of Appeal theusual procedure will be to bring the caseinto the administrative appeals tribunal.The existing first instance jurisdictions ofthe component parts of the administrativeappeals tribunal will remain as they are now.

Clarifying the relationship betweentribunals & the courts

7.24 For many hundreds of years the Court of King’s Bench (and, later, the King’s BenchDivision of the High Court) has exercisedsupervisory jurisdiction in England and Walesover decisions of inferior courts andtribunals. This jurisdiction is now vested inthe Administrative Court, which forms partof what is now the Queen’s Bench Divisionof the High Court.

7.25 Many Acts of Parliament, eitherin relation to particular tribunals, or, moregenerally, through the Tribunals and EnquiriesActs 1957 and 1992 have created a statutoryright of appeal to the higher courts, usuallyon a point of law, and the High Court willnot normally exercise its judicial reviewjurisdiction if statute has created an equallyconvenient remedy. In 1976 judicial reviewprocedures were placed on a modern footingand since 1981 section 31 of the SupremeCourt Act has provided the necessarystatutory underpinning for the High Court’spowers in this context.

7.26 In his report, Sir Andrew Leggattdrew attention to the unsatisfactory natureof the inconsistent rights of appeal fromtribunals that then existed. He said that“if only for reasons of the greater complexityof procedure, [judicial review] cannot be


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regarded as a real alternative to an effectiveright of appeal.”24 He added that the currentarrangements lacked cohesion and heproposed in their place a divisional systemof tribunals, each with a correspondingappellate tribunal.

7.27 For the reasons set out earlier we arenot proposing to establish a divisionalstructure but instead propose to create anadministrative appeals tribunal from theexisting higher-tier appellate tribunals. Ourintention is that the new upper tier would bestrengthened by the secondment of circuitjudges and, for cases of sufficient weight,High Court Judges with the relevantexpertise. The courts’ traditional supervisoryor appellate role would then, in most cases,be exercised by the Court of Appeal, whichwould be concerned only with appeals thatraised an important point of principle orpractice, or where some other compellingreason existed that warranted the attention ofthat court. Our intention is that appeals fromtribunals should for the most part remainwithin the tribunals system and that wherenovel or difficult points of law are raisedappeals should be to the Court of Appealrather than the High Court.

7.28 Permission to appeal will be necessaryboth for an appeal from the first tier to thesecond tier and from an appeal from thesecond tier to the Court of Appeal. With thisstructure the only possible role for judicialreview in the High Court would be on arefusal by the first and second tier to grantpermission to appeal. It is this possible routeto redress which has caused so muchdifficulty for both the Immigration AppellateAuthorities and the Courts. When permissionto appeal has been refused by both tiers, andprovided that the tribunal appellate judiciaryare of appropriate quality, as we intend thatthey should be, there ought not to be a needfor further scrutiny of a case by the courts.However, complete exclusion of the courtsfrom their historic supervisory role is a highlycontentious constitutional proposition and so we see merit in providing as a final form of recourse a statutory review on paper by a judge of the Court of Appeal.



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8.1 The Employment Tribunals (ETs) and theEmployment Appeal Tribunal (EAT) do not formpart of the administrative justice system as itis commonly conceived and have someunique features arising from their history and their party vs party nature. The ETs wereformerly called Industrial Tribunals and wereestablished in 1964 and their originaljurisdiction, until the Industrial Relations Act1971, was part of the administrative justicesystem. But they have acquired an increasingnumber of jurisdictions, now nearly 80 in total,and are now overwhelmingly party vs party innature. As employment tribunals haveexpanded both in jurisdictions and workloadthere have been a number of reviews of theirrole, organisation and procedures. In October 2001 the Lord Chancellor and the Secretary ofState for Trade and Industry established theEmployment Tribunal System Taskforce, to make recommendations on how servicescould be made more efficient and costeffective for users, against the background of rising caseloads. The taskforce’s overallobjective was to ensure that the employmenttribunal system reflected the needs of its usersand the changing environment in which itoperated. It was to identify ways of improvingoperational efficiency and the scope forimproving services, to advise on the need fornew investment to meet any revised serviceobjectives and performance measures, toconsider how to improve liaison between allthose involved in the system, including judiciaryand the administration and to examine possibleimprovements to the management of case flow and of case management. The taskforcereport was published in July 2002 and itsrecommendations, which have been acceptedby government, were intended to be acoherent strategy for the employment tribunalsystem. The report – Moving Forward: The Report of Employment Tribunal SystemTaskforce – recommended:

• greater co-ordination and consistency of practice;

• a shift in the axis of the employment tribunalsystem so that the emphasis is on earlydisclosure of information with a view toidentifying the issues in disputes and theirefficient resolution;

• an emphasis on preventative work and the identification of and learning from bestpractice; and

• the use of tribunal proceedings as a lastresort after all other alternative routes forthe resolution of disputes have beenexhausted.

8.2 There are obvious similarities betweenthis approach to the work of the employmenttribunals and the approach which we aredeveloping towards civil and administrativejustice on a broader canvas.

8.3 While the taskforce set the agenda and strategy for the way in which theemployment tribunal system works it was not part of its remit to examine the primarylegislative framework within which the systemoperates and it did not consider whether legalaid should be introduced into employmenttribunals in England and Wales or whichdepartment should have responsibility for the employment tribunals.

8.4 Despite the differences with the othertribunals which will form the new system, wehave decided to accept Sir Andrew Leggatt’srecommendation that they are nonethelessjoined with the other tribunals under LCD (now DCA).

8.5 Two main propositions aboutdepartmental responsibility were put to theLeggatt Review: that these tribunals shouldbecome courts; and that they should remainunder the administration of the DTI. SirAndrew rejected both. On the first he saidthat this would be a retrograde step, whichwould lose the tribunals’ strength in havingmulti-member panels and make it moredifficult to adopt the enabling approach forusers which he wanted to see across the

8 Employment Tribunals and the Employment Appeal Tribunals


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board. We agree. From the user perspectivethe balance and expertise which multi-member panels can bring and the maximuminformality and accessibility which we seek inthe new unified tribunal system are importantfeatures. They are much more likely to bemaintained and improved if the tribunals arealigned with the other tribunals than with thecourts. We also believe that these tribunalswill bring some useful perspectives to thenew system as a whole such as theexperience of working with Acas to resolvedisputes and their experience in dealingwith discrimination cases. We believe thatconferring the power to act as a mediatoron all tribunal judges will be of particularbenefit to the ETs.

8.6 On the second point he concluded thatusers would have more confidence in theindependence of the tribunals if they wereremoved from DTI. Although it is not a party to most ET cases the DTI is responsible for the legislation which the tribunals administeras well as paying for them and appointing the non-legal members. We do not think thisargument is as convincing as the first and so it is mainly for that reason that we havedecided to transfer the tribunals. The DTI will retain responsibility for ET procedural rules as they are an integral part of theemployment relations system, but thisposition will be reviewed when the TribunalProcedure Committee has been established.

8.7 Within the new unified system thedistinctive nature of the law applied and theparty vs party processes suggest that there isa need to maintain rather more of a separateidentity and administration for these tribunalsthan for some others. But the key test is whatis in the interest of the public and the users.Carefully designed standardised processescan be expected to make things easier forusers and their advisers so exceptions willhave to be justified.

8.8 We agree with the Leggatt Reviewrecommendations that case managementreforms based on the civil procedurereforms need to be introduced into theETs. Much has been done already within theexisting rules and new ET procedural rulesto be introduced later this year will parallel

provisions in the Civil Procedure Rules. Thenew rules also implement other task forcerecommendations.

8.9 The EAT will continue to be distinctwithin the new structure for second-tierappeals and will not form part of anadministrative appeals tribunal. However,the single judicial office principle will applyacross the board and so if a member of theEAT judiciary has the necessary skills andexpertise he or she may also be assigned tothe administrative appeals tribunal (and viceversa). To bring it into line with otherappellate bodies we will include in any futurelegislation on tribunals a provision wherebyappeals to the EAT will require permission.

8.10 Unlike most tribunals, there cansometimes be difficulty in enforcing ETdecisions. The present process in Englandand Wales involves registration of thedecision in the county court, a process whichcan be time-consuming and involves payinga fee. The process in Scotland is simpler.Settled cases, even if brokered by Acas or arecognised mediation scheme, have no statusbeyond that of an ordinary contract. Theycannot be registered in the civil courts: if anyagreed compensation is not paid the claimanthas to start proceedings on the contract andin theory the claim can be contested.

8.11 This is unsatisfactory. We will reformthese processes so that an award ofcompensation, whether ordered by thetribunal or agreed between the parties, canbe enforced with the minimum of bureaucracyas if it were an order of the civil courts.

8.12 The major stakeholders in industrialrelations – the TUC, the CBI, the SmallBusiness Council, Citizens Advice and others – have always taken a close interestin the workings of the employment tribunalsystem. We welcome this and will continueto facilitate it. The existing Ministerial AdvisoryBoard will continue but with a remit to advisethe Senior President and the Chief Executiveof the new structure, as well as theSecretaries of State for Trade and Industryand for Constitutional Affairs.


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9.1 The tax appeals system has developedover a period of some two hundred years. In its current form the system provides for an independent review of certain decisionsmade by the Inland Revenue 25 and by HM Customs and Excise and is comprised of four distinct entities.

9.2 The General Commissioners of IncomeTax hear most of the straightforward appealsof Inland Revenue decisions. There are around2,200 General Commissioners who are all lay volunteers. They are appointed to around400 geographic Divisions covering England,Scotland, Wales and Northern Ireland. Theyappoint Clerks (often local solicitors) who aresessionally paid to provide administrativesupport and legal advice.

9.3 The Special Commissioners of IncomeTax must be legally qualified and deal mostlywith the more complex direct taxation cases,although any appellant can elect to have theirappeal heard before them rather than theGeneral Commissioners if they wish. There are currently 26 Special Commissioners.

9.4 The VAT and Duties tribunal hearsappeals against decisions by HM Customsand Excise relating primarily to VAT andexcise issues. There are 43 legally qualifiedChairmen (most of whom sit part-time) and107 part-time lay members. Twenty-five ofthe Special Commissioners also sit as VATand Duties Chairmen.

9.5 The Section 703 Tribunal sits infrequentlyand deals with cases relating to certainprovisions of the Income and CorporationTaxes Act 1988. It’s members are appointedby the Lord Chancellor.

9.6 Administrative support to the SpecialCommissioners and VAT and Duties Tribunalsis provided by DCA. All members of thesetribunals are fee paid or salaried.

9.7 Over the years there have been increasingcalls for substantial reform to the tax appealssystem from a number of quarters. Reviews

have focussed primarily on three key areaswhere the existing system was felt to fall shortof meeting the needs of its users:

9.8 Inconsistency of structures andprocesses. Each of the tax tribunals variessignificantly in terms of processes andprocedures as well as the structure andfunction of its judiciary. This results in a lack of coherence within the appeals system,exemplified by the lack of a clear distinction in the jurisdictions of the General and SpecialCommissioners.

9.9 Open and representative appointments.General Commissioners are appointed by the Lord Chancellor on the advice of localadvisory committees and each Division ofGeneral Commissioners is responsible forappointing a Clerk to provide administrativesupport and legal advice: there is no centralcontrol over either recruitment process. Thishas led to the suggestion that, in some areas,there is a tendency for GeneralCommissioners to be drawn largely froma single social group that is unrepresentativeof the community which they serve.

9.10 Manifest tribunal independence. Direct taxation appeals are lodged with theInland Revenue and, for cases heard by GeneralCommissioners, the initial administrationinvolved in getting the case to hearing is carried out by the Revenue. As a result, theindependence of the tax tribunals from theRevenue can be unclear to the appellant.

9.11 These failings of the current system are inherent in the existing legislation. Thecreation of the unified tribunal system and the merger of the Inland Revenue and HMCustoms and Excise offer the ideal setting for reform. However, in recognising the needfor structural reform, we should not detractfrom the on-going work of the GeneralCommissioners and others within the existingstructures to offer the best possible service to taxpayers.

9 Tax Appeals

25 Tax credit and Child Benefit appeals are heard by the Appeals Service


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A unified jurisdiction

9.12 The general principles for tribunal reform have been described elsewhere in thisdocument. Fundamental to our specificproposal for taxation appeals is drawingtogether the four existing tax appeal bodiesinto a single structure. This unified jurisdictionwill include all those cases currently heard bythe General Commissioners, the SpecialCommissioners, the VAT and Duties Tribunaland the Section 703 Tribunal. This structure willbe capable of hearing the full range of directand indirect tax cases, from the straightforwardand quickly-settled, to the highly complex andlengthy, and will be supported by suitablyflexible arrangements for case-managementand judicial deployment.

A two tier structure

9.13 In line with the broader proposals for the structure of the Tribunal Service, the taxappeals system will consist of two tiers. Thefirst tier will be responsible for hearing mostdirect and indirect taxation appeals in thefirst instance. These will be the less complexcases that concentrate primarily on settlingfactual issues. Appeals against decisionsmade by the first tier will lie, with permissionand on a point of law, to the administrativeappeals tribunal, the appellate tier of theunified tribunal organisation. Onward appealswhich currently go to the High Court will infuture be dealt with by the administrativeappeals tribunal. Further appeals from theadministrative appeals tribunal will lie to the Court of Appeal.

9.14 A common theme of respondents toprevious consultations on tax appeal reformhas been the need for any new system tomeet the requirements of all users – rangingfrom large businesses and institutions(including the government bodies whosedecisions are under review) to small tradersand individual taxpayers. Concerns had beenraised that, for particularly complex and legallycontentious cases that currently come beforethe Special Commissioners of Income Tax or the VAT and Duties Tribunal, the creation of a two tier system would create an additionaland inappropriate layer of appeal. We havelistened to these views and agree that it would be inappropriate for those complex

cases to go through both tiers, as a resultthe new structure will allow the President

of the tax jurisdiction to assign suitable cases for hearing at the appellate tier in the first instance.

9.15 The role of lay members within the tax jurisdiction will be evaluated as part of the wider study of non-legal members across the unified tribunals organisation. The appointment of members will be made in line with the wider reform proposals and will ultimately fall within the remit of theJudicial Appointments Commission.

9.16 A new role of President of tax tribunalswill be created to preside over the taxjurisdiction, with the same responsibilities for judicial leadership, training, appraisal and professional development as the otherjurisdictional Presidents.

9.17 Bringing together the top tribunals within a single administrative organisationshould create opportunities for streamliningthe support structures for the existing taxtribunals. Where that would allow betterservice to taxpayers, we aim to merge thoseservices within the central administration forexample such functions as listing, booking of hearing rooms, case processing andcorrespondence-handling.

9.18 Together these reforms will create aharmonised structure for appeals againstindirect and direct taxation, meeting thereform principles outlined in this documentand building a structure to meet the needs ofall users – individual taxpayers, businessesand the new department of HM Revenue and Customs.


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10. 1 A democratic state exists to serve its citizens. Our public sector reforms areintended to make that aspiration a reality forthe 21st century. That many members of thepublic need assistance or support in dealingwith a state agency is an implicit admissionthat that agency is still not sufficientlyresponsive to the needs of the user – that the law is too complicated, or that theagency’s actions are not explained clearlyenough or in a way which is accessible toevery individual, or that the agency’s ways ofgathering information about an individual’scircumstances are too limited. We intend tochange that. But some people will alwaysneed a lot of help, perhaps because oflearning difficulties or physical disability orlanguage problems. And others will needsome degree of help until services aresuccessfully made more responsive. Thischapter is about how we intend to addressthose needs – but always bearing in mind thatwe aim to create a situation where individualsin dispute with the State or who might betaking a case to a tribunal, or defending one,will be able to have their case resolved withlittle or no support or assistance.

10. 2 As the research into user needs outlinedin previous chapters illustrates, users need:

• the ability to explain all the relevantcircumstances of their case to the decision-maker;

• a clear explanation of the decision and their options for disputing it, including adescription of the role of a tribunal and any alternatives to tribunal proceedings, and any time limits for action;

• further information about tribunalprocedures;

• information on how and where to lodge their case and what will happen next,especially what will be required of them;

• clear signposting to sources of advice about their individual case;

• the ability to deal with all necessarypaperwork;

• advice on the chances of success and onhow they can legitimately maximise theirchances of success, including how topresent their case or what evidence theyneed to present; and

• in some cases, advocacy on their behalf toa department or a tribunal or at an oralhearing.

10.3 All these are legitimate requirements on the part of an individual. However, they are not absolute rights. The processes ofdepartments, tribunals and other disputeresolution mechanisms must meet, andpreferably exceed, the minimum requirementslaid down by the European Convention onHuman Rights, common law and statute. Butthe extent to which they can and should bemet at public expense depends on the natureand complexity of the task to be undertaken,the individual’s own capabilities and theseriousness of the issues. Full-scale legalrepresentation at the taxpayer’s expense inevery administrative dispute or tribunal casewould be disproportionate and unreasonable.We need a balanced and systematic approachto these issues, involving departments, thenew unified tribunal system, existing providersof legal and other expert support and thevoluntary, charitable and private sectors.

10. 4 It is important to note that the taxpayeralready supports users. In 2002/03 the LegalServices Commission spent over £200m onassistance in asylum and immigration, mentalhealth and welfare benefits cases.26 Otherpublic sector bodies such as local authoritiesalso provide support, through funding foradvice agencies and law centres. The DTI, for instance, funds services from Citizens’Advice. Acas provides advice to bothindividuals and employers on employmentlaw and best practice. Its helpline takes750,000 calls for advice every year. Puttogether with the expenditure on providing

10 Supporting the User

26 LSC annual report


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decision-making and dispute resolutionservices the key issue is whether all thismoney is being spent in the best possibleway to provide support where it is mostneeded and can confer most benefit.

10.5 The first requirement for a fair andeffective administrative justice system for the individual is that they should be able toexplain their circumstances clearly andcomprehensively to the decision-makingdepartment. It is clear 27 that many cases which go to appeal turn on issues of factwhich, had they been known or considered at the decision-making stage, would haveresulted in a different decision at the outset.All the money and effort spent on overturningthe decision is a waste, putting unnecessarypressure on the individual and tying upresources which could have been spent ondirect services to the public. So investment in helping people to make the best possiblecase at the outset so that the department can get things right first time may well paydividends for everyone.

10.6 If the decision is still unfavourable theprospective appellant needs a range ofinformation to understand what the decision is and why it was reached, and to decidewhether there is anything that can be done.For too many people the process of takingtheir case to a tribunal is unnecessarilydaunting or confusing; they may not even be aware of the tribunal’s existence or theymay overestimate its capacity to remedy their grievance. As a result people with validappeals may be deterred from lodging them or may prepare their case so badly that thetribunal has no chance of assessing itsmerits properly. At the same time poorlyunderstood original decisions or poorunderstanding of rights in relation todisputing the decision lead to misconceivedappeals with little hope of success.

10.7 So the individual needs informationbut also often needs realistic advice aboutoptions open to them and the prospects ofsuccess. There is an important distinctionbetween the two needs, with implicationsfor the services which are available. It is a

responsibility of departments to explaintheir decisions clearly and fully. It is a jointresponsibility between departments andtribunals to explain what the options andprocedures are for obtaining redress. Bothdepartments and tribunals should strive toprovide a service of a quality which makesassistance at this stage unnecessary.However, at present, this information isnot always integrated in a way which helpsthe individual to chart a way through theirparticular problem.

10.8 The Leggatt Review also recommendedthat departments give clear guidance to staff,particularly those involved in departmentalreview, on the kinds of case for which thevarious processes are appropriate.28 TheReview suggested that departments giveclear information in their leaflets to usersabout the circumstances in which an appealto a tribunal is the route to follow and, byexplaining the differences in jurisdiction, thosein which a complaint to an ombudsman oradjudicator is more appropriate.

10.9 We agree with all that but we alsobelieve that many users want and wouldbenefit from advice from a sourceindependent of government about whatthey should do in relation to their case.Some need clear advice on whether theyhave a case at all in any forum. So whiledepartments should always provideinformation on appeal and grievance routesit may be more appropriate for governmentto support external providers, particularlythe voluntary and charitable sector, inproviding diagnostic tools and advice. Staffat the new tribunal organisation will be ableto provide advice on procedure and may beallowed to offer a view on prospects ormerits but they have to be neutral, in a waythat an advisor does not. They do have arole in assisting independent advisors togive accurate information about proceduraloptions. Because the independent advisorcan advise both on the options and themerits it may make more sense from theuser’s point of view for both types ofadvice to come from the same source.

27 see for instance the President of the Appeals Service’s reports on decision-making28 recommendation 209 p.230


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10.10 The voluntary and charitable sector has always played an important role in adviceand assistance in administrative justice andtribunal cases. We want that to continue and expand, although the private sector will always have a role in assisting the users ofsome tribunals and may be able to take onan expanded role in others. Likewise, we seea continuing role for public funding intribunals where the right to asylum and theright to liberty are involved and in theEmployment Appeal Tribunal. Within thoseparameters, we accept that there is a needin some cases to provide assistance in, forinstance, gathering information and evidenceand filling in paperwork, and in advising onmerits and presentation. We intend to provideresources and work with potential providersto pilot innovative schemes to do this. Thiswill be called the Enhanced Advice Project.We do not want to be prescriptive at thisstage about what those schemes might be:our intention is to work together with theLegal Services Commission and the voluntaryand charitable sector within the resourcesavailable. Much will depend on the nature ofthe innovative dispute resolution methodswhich the new service succeeds inestablishing. Our work together will be asmuch focused on making procedures moreaccessible as on devising new ways ofassisting people through procedures.

10.11 Our aim is to reduce the need forhearings before tribunals through betterdecisions and innovative proportionatedispute resolution methods. But some caseswill require oral hearings and the extent towhich publicly funded advocacy is necessaryor desirable in tribunals remains a matter ofdebate. Tribunals bear many similarities tocourts but the hearings are intended to beless formal and adversarial in nature whichought in time to reduce the need forrepresentation. The relevant law may alsobe simpler than in many court cases andeven where it is not in many tribunals therewill rarely be a need for a party to concernthemselves with technical evidential issuesor to deploy the traditional lawyer skill ofcross-examination of witnesses.

10.12 A key principle of Sir Andrew Leggatt’sreport is that tribunals should operate so thatthere are few exceptions to the principle thattribunal users should be able to prepare andpresent their cases themselves. Furthermore,he found that representation “not only addsunnecessarily to the cost, formality anddelay, but it also works against the objectiveof making tribunals directly and easilyaccessible to ... users.” He argued that“a combination of good quality informationand advice, effective procedures and well-conducted hearings, and competent andwell-trained tribunal members” would makeit possible for “the vast majority of appellantsto put their cases properly themselves”i.e. without representation.29

10.13 Some have argued differently. The LawSociety, for example, in its response to ourconsultation on the Leggatt Report, claimedthat “in many instances tribunal hearings arenot simple enough for individual applicantsto manage unaided”, and contended thatrepresentation was becoming necessary inmore tribunals. As a result the Society arguedthat representation should be encouraged,not least through the extension of legal aid toEmployment and Social Security tribunals.

10.14 The government does not acceptthat blanket availability of legal aid in thisway is necessary. It is important to bear inmind that funding is already available forrepresentation at certain tribunalproceedings, including the EmploymentAppeal Tribunal, any Mental Health ReviewTribunal, the Immigration Appeal Tribunal orproceedings before an adjudicator, theSpecial Immigration Appeals Commission,or the Proscribed Organisations AppealCommission. In addition, proceedingsbefore the Protection of Children ActTribunal and certain proceedings beforethe VAT and Duties Tribunal and the Generaland Special Commissioners of Income Tax,are also in scope of the Community LegalService. For other tribunals our intentionis to reduce the need for representation bythe provision of alternative approaches todispute resolution, which do not requirerepresentation, by improved advice and



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assistance for the preparation of cases andby better trained and more highly skilledpanel members. This will help the majorityof citizens who can present their caseeffectively. There will still, however, be aneed for representation in some cases,where an individual cannot represent his orher own case and the tribunal is resolving amatter of great importance to the individual.Funding is already available for suchexceptional cases under the Access toJustice Act 1999 s.6(8)(b).

10.15 The government believes thatthe current scope and structure of theCommunity Legal Service’s contribution tosupporting users in the administrative justiceand employment field is about right for thecurrent process but there is also a case forlooking at these issues in a more flexible way.The case for representation and advocacy isbased on assumptions about the nature ofthe tribunal process. As the processchanges, so does the need for support.


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11.1 For the past 46 years tribunals havebeen subject to the supervision of the Councilon Tribunals. Over that time its powers andremit have changed little. We are nowembarking on what is probably the mostradical set of changes to tribunals ever, and webelieve that the Council needs to change too –to become an Administrative Justice Council,focused on the needs of the public and users.This chapter deals with how we propose tomove the Council into that new role.

The Council at present

11.2 The Council’s statutory duties are:

• to keep under review the constitution and working of the tribunals under itssupervision;

• to consider and report (to the LordChancellor) on such particular matters asmay be referred to the Council under theAct. In practice this has involved makingmainly general recommendations onprocedures and composition of tribunals;

• to be consulted on proposed secondarylegislation (rules and regulations) relating to tribunals (but there is no duty to consultthe Council on primary legislation);

• to consider and report on matters referred to it concerning statutory inquiries; and

• to make an Annual Report to the LordChancellor (to be laid before Parliament).

11.3 Sir Andrew Leggatt made it clear that he saw the Council as having a key role in hisproposed tribunal reforms. However, whilepraising the Council’s achievements, henoted a number of deficiencies in the way inwhich it is obliged to carry out its work. Headded that “in focussing on the need fordetailed comment on specific issues [theCouncil] has given insufficient emphasis tostrategic thinking about administrative justice generally or about tribunals in particular.” 30

11.4 His recommendations were aimed atdeveloping an enhanced role for the Council.Sir Andrew envisaged a more proactive body,which would champion the needs of userswithin the Tribunals Service. In pursuit of thisaim, it would provide more conferences,more detailed tribunal information, morespecial reports, and more guidance onstandards and best practice.

Strengthening the Council’s role

11.5 Sir Andrew’s main criticisms of theCouncil as presently constituted werethat it lacked a truly authoritative voice.He observed that “because departmentswere under no obligation to respond to itscriticisms, the Council must have felt thatany good it did had to be done by stealth,rather than by confrontation, lestdepartments take offence and withdrawtheir collaboration. With unresponsivedepartments, and no Select Committeeto report to, it has not been giving suchan account of itself as meets the demandsof the twenty-first century.” 31

11.6 We agree that the Council’s views shouldcarry greater weight within government,especially where the Council has identifiedshortcomings in the operation of particularsystems. To ensure that the Council can playits full part in assisting the transition to thenew tribunal structure and beyond:

• we will introduce a code of practice dealingwith consultation with the Council on allforms of legislation affecting tribunals;

• in tandem, we will give the Council authorityto publish its comments on legislation,should it think it appropriate. Not alllegislation is published in draft form and so some consultation might have to be on a confidential basis with publication ofcomments where appropriate followingpublication of the legislation;

11 An Administrative Justice Council

30 paragraph 7.47 p. 9631 paragraph 7.48 p. 96


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• the Code of Practice will also commitsponsoring government departmentsto publish its response to the Council’scomments as part of the process ofpublishing primary or subordinatelegislation; and

• the Council’s reports will be drawn to the attention of the appropriate SelectCommittee of the House of Commons.

11.7 Much of the above may be achievedwithout legislation and, coupled with the wider dissemination of the Council’s reportswill serve to raise its profile across thetribunals world. We will implement thesechanges as soon as possible.

Supporting the creation of the newdispute resolution system

11.8 The Council has strongly supported the reform and unification of the tribunalsystem and it will have an important role toplay in facilitating the establishment of thenew system by, for example:

• collaborating with the Chief Executive of thenew agency and other tribunals to identifycommon performance measures, to promoteeffective alignment of data collection andmore effective benchmarking of performance;

• scrutinising and if necessary challenging the way in which the new organisation isbeing established;

• in collaboration with the JSB, advising theSenior President on an appropriate initialtraining policy and co-ordinated trainingprogramme for the unified tribunals judiciary;

• obtaining the views of users and the advicesector on issues arising from the unificationprocess, formulating advice to DCA on userpriorities and concerns, and promotingongoing dialogue between the unifiedtribunals and the user community; and

• recommending which tribunals should be brought into the Tribunals Service after the initial big 10.

Judicial Training and Appraisal

11.9 The present productive partnershipbetween the Judicial Studies Board (JSB)

and the Council will continue under our reform proposals:

• the Council will continue to promoteeffective judicial training, performancemanagement and appraisal for tribunals inaccordance with its framework of standards;

• the Council will be actively engaged inidentifying training needs and priorities,seeking advice from the JSB on howeffectively training is being organisedand delivered and providing advice andfeedback to the JSB on training issues; and

• the JSB will undertake evaluation andquality assurance of the training actuallyprovided within tribunals, ensuring thattraining is delivered to agreed nationalstandards. This builds on the recent workof the JSB and the Council on Tribunals indeveloping a common and consistentapproach.

Research

11.10 Sir Andrew recommended that theCouncil should be enabled to commissionresearch into the operation of administrativejustice both in the UK and abroad. While werecognise the importance of soundly basedresearch in developing tribunals policy, thecreation of a separate Council on Tribunalsresearch arm would be over-ambitious andunnecessary. The Council does howeverhave a number of advantages when it comesto identifying priorities and encouraging theconduct of research. It will therefore makerecommendations on the priorities for DCAresearch activity in areas of the Council’sinterest, as well as playing a major role indisseminating, and lending authority to, any research findings.

An Administrative Justice Council

11.11 With the establishment of the newsystem the need for the Council’s current and proposed activities will change. Theestablishment of a procedure committee forthe tribunals, with judicial, professional anduser members, will mean that the Council’scurrent role in commenting on secondarylegislation will need to be reviewed. Oneoption may be that the Council might retain a


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statutory right to be consulted on secondarylegislation, but exercise that right throughrepresentation on the Procedure Committee.That should mean a better dialogue betweenthe Council and the other interests in thesystem. Likewise, the creation of a unifiedsystem for central government tribunals with a strong and vigorous Senior President andChief Executive in charge should mean lessinvolvement by the Council in the work ofthose tribunals. What is needed for the futureis a Council which can focus on improvementsfor the user across the whole administrativejustice field, so that the new organisation,and tribunals outside the new organisation,develop and operate under the strategicoversight of an independent and authoritativebody with a very wide perspective.

11.12 We therefore propose that theCouncil should in the longer term, whileretaining its supervisory role over all typesof tribunal, evolve into an advisory body forthe whole administrative justice sector – anAdministrative Justice Council. It wouldreport to the Secretary of State forConstitutional Affairs who would have aparallel remit within government to take thelead on redress policy generally. We would,for instance, expect an AdministrativeJustice Council to make suggestions fordepartmental review, for proportionatedispute resolution and for the balancebetween the different components of thesystem. The Council would therefore beconcerned to ensure that the relationshipsbetween the courts, tribunals, ombudsmenand other ADR routes satisfactorily reflectthe needs of users. We envisage a broad-based, mixed membership under anindependent Chair, bringing together userrepresentatives and non-executive memberswith office holders, able to generate ideasfor the future that reflect the needs of thevarious “constituencies” but small enoughto function as a collective and active body.The Parliamentary Ombudsman is alreadyex officio a member of the Council onTribunals; other officer-holder memberscould include the Senior President and a

senior civil servant from the Cabinet Officeor a major decision-making department.

11.13 Thus in discharging its statutoryfunctions in relation to tribunals, on this model the Council would also be charged with taking full account of the broaderlandscape of administrative justice, and be empowered to make recommendationsabout it. The new Administrative JusticeCouncil would in addition to the Council onTribunals current duties therefore:

• keep under review the performance of theadministrative justice system as a wholedrawing attention to matters of particularimportance or concern;

• review the relationships between thevarious components of the system (inparticular ombudsmen, tribunals and thecourts) to ensure that these are clear,complementary and flexible;

• identify priorities for, and encourage theconduct of, research; and

• provide advice and make recommendationsto government on changes to legislation,practice and procedure which will improve theworkings of the administrative justice system.

11.14 The Council at present has a remitcovering England, Wales and (through astatutory committee) Scotland, but not NorthernIreland. With the devolved administrations wewill consider whether a new structure would bedesirable for the new Council.

11.15 Any legislation necessary to facilitatethe new role of the Council on Tribunals, asoutlined above, will be framed so that it canturn into an Administrative Justice Councilwhen the time is right.


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12.1 In this chapter we set out the steps weintend to take to establish our transformedsystem. Much can be accomplished withoutlegislation, including the creation of theTribunals Service and the transfer of existingtribunal administrations to it. But somechanges will require legislation and these are

set out in italics. The Government’s legislativeprogramme is not settled until shortly beforethe start of a session and is announced in the Queen’s Speech, so these changes areillustrative only i.e. they show what wouldhappen if a Bill were introduced at the pointset out in this sequence.

12 The Route to a New System

2001 August Leggatt Review published and public consultation started

2003 March Lord Irvine announces Government’s intention to establish new Tribunals Service

November Lord Filkin in his speech to the Council on Tribunals’ Conference, sets out a broader vision for reform

2004 February DCA tribunals separate from the Court Service to form the nucleus of the new system

June Administration of General Commissioners of Income Tax transferred to DCA Tribunals GroupLaw Commission housing adjudication project starts

July White Paper published

September Chief Executive of the new Tribunals Service agency appointed

October Better Information Project starts

2005 January Pilots of PDR and enhanced advice schemes commence

April Tribunals Service executive agency launched on a shadow basis, taking over the administration of the DCA tribunals

June Law Commission consultation paper on housing adjudicationCourts and Tribunals Bill introduced

October Better Information Project reports

December Royal Assent for Courts and Tribunals Bill

2006 January Review of role of different types of members starts

March Evaluation of enhanced advice and PDR schemes published

April Formal launch of Tribunals Service agencyTribunal Procedure Committee establishedSENDIST and Employment Tribunals Service join new serviceCouncil on Tribunals becomes Administrative Justice Council

December Review of roles reports

2007 January Review of local government tribunals starts

April Appeals Service joins new serviceSingle judicial office implementedAdministrative appeals tribunal operational

May Law Commission final report on housing adjudication

2008 January Review of local government tribunals reports

April CICAP and Mental Health tribunals join new service

2009 April Remaining central government tribunals join new service


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Approach to implementation

12.2 We have set out elsewhere in the WhitePaper how we believe the creation of a neworganisation to provide a singleadministrative structure for tribunals willbenefit customers. In this section we set outwhat changes customers can expect to seeas the reform programme rolls out.

12.3 We aim to formally launch the TribunalsService in April 2006 as a new executiveagency in DCA although it will be runninginformally from a year before that. A ChiefExecutive for the new agency will be appointedin 2004 and in partnership with the SeniorPresident-designate he or she will driveforward the change programme.

12.4 The creation of the new system is being phased in order to ensure that tribunals are brought together in a controlledand orderly way, that existing reform plans are not disrupted and that the unified courtsadministration is properly established. Thetransfer dates are not, however, set in stoneand we will look to transfer tribunals at anearlier stage if it is in the interests of allparties to do so. So we are exploring if thetimetable for transfer can be accelerated.

12.5 But we will not wait for tribunals totransfer to DCA before we improve theservices they deliver to customers. SirAndrew Leggatt’s Review has already donemuch to change the culture in which tribunalssee themselves working – we are now seeinga much greater awareness of how by workingtogether tribunals feel they can improve theservices they offer. In the last couple of years,informal working and networking groups havebeen set up, aimed at sharing best practiceand sometimes actual resources. All this willhave produced some gains.

12.6 But we now intend to do more and towork with tribunals in a series of proactiveprogrammes to promote sharing resourcesahead of formal transfers across governmentboundaries. What we seek to deliver are bothlarger and smaller tribunals regardingthemselves as part of a common system and being prepared to work for the good ofthat system and for the good of all those who make use of tribunals, either as actual or potential customers.

12.7 What will these improvements deliver?Firstly we want to tackle now the provision of hearing centres so that we can utilise theexisting hearing centre estate for the benefit of all customers. By putting in place an activeprogramme of sharing of existing centres, we can tackle under-utilisation by largertribunals and the need to hire hotels and other temporary accommodation by others.This is the Shared Accommodation Initiative.

12.8 We have already started to see thebenefits of this joined up approach toaccommodation, having achieved the co-location of SENDIST with DCA’s tribunalssome two years ahead of their formaltransfer. We will look to exploit otheropportunities as they arise.

12.9 We will also explore the potential forcentralising administrative support. A numberof tribunals already have dedicated backoffice facilities and we will look to seewhether there is scope for these to take onmore work from other tribunals. For users,this will have the benefit of speeding upprocessing times. There is also scope forefficiency savings if this leads to furtherrationalisation of the estate.

12.10 We will take account of currentmodernisation programmes proprosed orbeing pursued in tribunal systems due to jointhe new structure. We will look at whether thesolutions proposed by the programmes aresuitable for application to other tribunalsjoining the Tribunals Service.

12.11 An early step will be to establish aTribunals Service presence on the internet.Initially this will provide information and linksto websites of those tribunals that are to jointhe Tribunals Service. When the Service islaunched, its website will be enhanced toform a single front face for tribunals. This willhelp direct users and their advisors to theright sources of information.

12.12 Our proposals for improving thesystem for appointment and deployment ofthe tribunals judiciary will require legislation.Should the Courts and Tribunals Bill receiveRoyal Assent in 2005, we will look to realisethe benefits from our judicial reforms as soonas possible.


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12.13 Some of the more radical approachessuggested in this White Paper need to bepiloted and evaluated to make sure that theyreally will deliver the changes for the userwhich we seek. But all departments will beworking together straightaway to improve the service to the public, not waiting for thenew agency. So we will within the next fewmonths launch:

• a commitment across government toraise the standard of decision-making;

• a Better Information Project, to raise the standard of decision letters;

• a Proportionate Dispute ResolutionProject;

• with the voluntary sector, an EnhancedAdvice Project,

• a Shared Accommodation Initiative;

• research into Unmet Legal Needs inadministrative and employment justice;and

• a new Code of Practice under whichGovernment will consult the Council on Tribunals on new legislation.

AND IN FIVE YEARS FROM NOW...

12.14 The public will have the benefit of:

• better decisions;

• clearer communications;

• fast, fair and easily triggered reviewof decisions by departments; and

• an independent, accessible, flexible andauthoritative dispute resolution system,tailored to the needs of the individual.


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The Adjudicator’s Office was set up in 1993 and now investigates complaints frompeople and businesses about the InlandRevenue (including the Tax Credit Office and the Child Benefit Office), Customs and Excise,the Valuation Office Agency, the PublicGuardianship Office and the Insolvency Service.

People complain to the Adjudicator about awide variety of matters. In general terms,they look at complaints about the way thingshave been handled by the Department inquestion, including mistakes, delays, poor ormisleading advice, staff attitude or behaviour,how departments have exercised discretionand how requests for information are dealtwith under Open Government.

The Adjudicator cannot look at matters which can be, or have been, considered byan independent tribunal, for example, ifsomeone is in dispute about how the lawshould be applied to them. Nor does shelook at matters which have already beeninvestigated by the ParliamentaryOmbudsman, or matters which relate tocriminal prosecution or investigation while theinvestigation or prosecution is still happening.

In 2002-03 the Adjudicator receivedapproximately 2,780 complaints of which 503became full investigations – the remainder(known as ‘Assistance cases’) were eitheroutside of the Adjudicator’s jurisdiction or hadbeen referred too early and the Departmentconcerned had not had the opportunity toaddress the matter. The Assistance Team alsoanswered 15,206 general enquiry telephonecalls. In addition to dealing with complaints,the Adjudicator’s Office puts a significantdegree of effort into assisting and advisingDepartments on setting up their in-housecomplaints handling systems.

The Independent Case Examiner (ICE) was established in 1997 and investigatescomplaints about services provided by the Child Support Agency and the NorthernIreland Social Security Agency, when clientsare dissatisfied with the outcome of theAgency’s internal complaints service.

The ICE can deal with complaints aboutservices received from the agencies e.g.long delays, mistakes and staff beingimpolite. They cannot deal with disputeson matters of law relating to child support,complaints which the ParliamentaryOmbudsman has either investigated oris investigating or those sent more than6 months after the Chief Executive of theChild Support Agency has issued a response.

In 2002-03 the ICE received a total of 1,444new cases but like the Adjudicator’s Office,they can only accept cases where the agencyconcerned has been given the opportunity to deal with the matter themselves; if it fallswithin jurisdiction i.e. it is not a complaintabout legislation or policy. During the year,911 cases were cleared and of those subjectto full investigation (407), 331 were either fully or partially upheld – a little over 81%

The ICE issues customer satisfactionquestionnaires to those customers whosecomplaints it is able to accept for action.During 2002-03, 45% of complainantsresponded and the results indicated that 86% were satisfied with the ICE’s service.

Annex AAdjudicator and Independent Case Examiner


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Voting (Full) Members (Schemes)

Parliamentary Ombudsman

Health Service Ombudsman

Welsh Administration Ombudsman

Local Government Ombudsmen, England

Scottish Public Services Ombudsman

Welsh Public Services Ombudsman

Northern Ireland Ombudsman

Financial Ombudsman Service

Financial Services Ombudsman, Isle of Man

Legal Services Ombudsman, England and Wales

Scottish Legal Services Ombudsman

Pensions Ombudsman

Housing Ombudsman Service

Independent Police Complaints Commission

Police Ombudsman for Northern Ireland

Estate Agents Ombudsman

Otelo (Telecommunications Ombudsman)

Removals Industry Ombudsman

Standards Board for England

The Ombudsman, Ireland

Insurance Ombudsman of Ireland

Ombudsman for the Credit Institutions, Ireland

Pensions Ombudsman of Ireland

Ombudsman for Gibraltar

Associate Members

Consumer Organisations

Citizens Advice (National Association of Citizens Advice Bureaux)

Scottish Consumer Council

Complaint Handling Bodies

The Adjudicator, Inland Revenue, Customs and Excise, Valuation Office Agency, PublicGuardianship Office, and the Insolvency Service

Advertising Standards Authority

Canadian Banking and Investment ServicesOmbudsman

Children’s Commissioner for Wales

Commission for Public Appointments

Complaints Adjudicator for CompaniesHouse

Complaints Commissioner to the GeneralCouncil of the Bar

Criminal Cases Review Commission

Criminal Records Bureau

Greffier of the States of Jersey

Healthcare Commission

Immigration Services Commissioner

Independent Assessor of Military ComplaintsProcedures (Northern Ireland)

Independent Case Examiner for the ChildSupport Agency and Northern Ireland SocialSecurity Agency

Independent Complaints Reviewer, LandRegistry, Public Records Office, CharityCommission, and Housing Corporation

Independent Review Service for the Social Fund

Information Commissioner

Institute of Chartered Accountants ofScotland (Legal Services Department)

Law Society Consumer Complaints Service

Law Society of Scotland (Client RelationsOffice)

Lay Observer for Northern Ireland

Office of the Independent Adjudicator forHigher Education

Prisons and Probation Ombudsman

Rail Passengers Council

Recruitment and Employment Confederation

Royal Institution of Chartered Surveyors

Scottish Parliamentary StandardsCommissioner

Scottish Prisons Complaints Commissioner

Standards Commission for Scotland

Subsidence Adviser

Waterways Ombudsman

Annex BBritish and Irish Ombudsman Association


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1. Tribunals Currently Within DCAAdjudicator to HM Land Registry 32

Finance and Tax Tribunals:

Special Commissioners of Income Tax

VAT and Duties Tribunals

The Financial Services and Markets Tribunal

Immigration Appellate Authority (the Immigration Adjudicators and the Immigration Appeals Tribunal)

The Immigration Services Tribunal

General Commissioners of Income Tax

Information Tribunal

Lands Tribunal for England and Wales

Pathogens Access Appeals Commission

Pensions Appeal Tribunal for England & Wales

Proscribed Organisations Appeals Commission

Special Immigration Appeals Commission

Social Security and Child SupportCommissioners

Transport Tribunal

2. Tribunals to transfer to DCA in firstphase (2006-2008)

Sponsoring Tribunal Department

Employment Tribunals Service (the Employment Tribunals for England, Scotland and Wales andthe Employment Appeals Tribunal) DTI

Special Educational Needs and Disability Tribunal for England DfES

Appeals Service (the Appeals Tribunals for England, Scotland and Wales DWP

Criminal Injuries Compensation Appeals Panel HO

Mental Health Review Tribunal for England DoH

3. Other Central Government Tribunals to transfer as agreed

Sponsoring Tribunal DepartmentAdjudication Panels for England ODPMAgricultural Lands Tribunal for England DEFRAAircraft & Shipbuilding Industries Arbitration Tribunal DTIAntarctic Act Tribunal FCOAsylum Support Adjudicators HOBetting Levy Appeal Tribunal DCMSCare Standards Tribunal DoHChemical Weapons Licensing Appeal Tribunal DTIConsumer Credit Licensing Appeals DTIDairy Produce Quota Tribunalfor England DEFRAEstate Agent Appeals DTIFamily Health Services Appeal Authority DoHFire Service Pensions Appeal Tribunal ODPMForeign Compensation Commission FCOForestry Committees for England and Wales DEFRAIndependent Adjudicator for National Savings & Investments HMTInsolvency Practitioners Tribunal DTIMeat Hygiene Appeal Tribunals DEFRAMines & Quarries Tribunal DTIMisuse of Drugs Tribunal HONHS Medicines (Control of Prices & Profits) Tribunal DoHPlant Varieties and Seeds Tribunalfor England DEFRAPolice Pensions Appeal Tribunal HORegistered Designs Appeal Tribunal DTIRegistered Inspectors of Schools Tribunal DfESReinstatement Committees and Umpires DTIReserve Forces Appeal Tribunal MODSea Fish Licence Tribunal for England DEFRASection 703 Tribunal HMT

Annex CCentral Government Tribunals

32 This decision-making body is not technically a tribunal, rather it is a statutory office created under the LandRegistration Act 2000


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The reformed tribunal system is designed to be adaptable so that it can take on otherexisting or new jurisdictions. One importantarea of work where suggestions have beenmade over the years that a new tribunalshould be created and existing tribunalsrationalised is in respect of what are broadlycalled housing cases.

At present such cases may be dealt within a very wide range of courts and tribunals,depending on the precise nature of the issue.For instance, landlords’ applications forpossession are dealt with in the countycourt, tenants’ complaints about disrepairmay be dealt with in the county court or themagistrates court, allegations of harassmentof tenants are dealt with in the criminalcourts and the level of rent or the right tohousing benefit are determined in specialisttribunals. The issues here are complexbecause they are inevitably closely entwinedwith the substantive law on the ownershipand occupation of homes and the remediesthat are or might be available. The LawCommission has considered many of theseissues in two recent reports: Renting Homes33 and Land, Valuation and Housing Tribunals:The Future 34. The Commission has nowproposed that it undertakes a full and wideranging review of housing adjudication as thebasis for reform proposals.

The government has agreed to theCommission’s proposal. The government andthe Commission have developed a commonunderstanding of the appropriate approachto this review, which states that:

“... many occupiers of private and socialhousing face a multiplicity of social and/orfinancial problems. There has been a rangeof policy initiatives which move away fromseeing housing problems as having onesimple cause, such as welfare dependency,towards a more sophisticated awarenessof the complexity of housing problems.

In contrast the current system of legal disputeresolution within housing appears onedimensional. It has developed on an ad hocbasis utilising the traditional, individualisedmodel of contract dispute resolution with its assumptions of equal parties to a bargainand rational informed decision-making.Moreover, a number of criticisms have been made suggesting a significant level ofperceived dissatisfaction with the way inwhich the current system for the adjudicationof housing disputes works. Without assumingfrom the outset that the current system is not adequate, the project will investigate itscapacity to contribute to solving people’shousing problems, and how it might fit into abroader approach to housing problem solving.

While the final outcome of the project will besubstantive law reform proposals, in arrivingat its recommendations, the Commissionintends to adopt a broad approach, startingfrom the understanding outlined above.

To do so, the project must do more thansimply interrogate law and procedures it will consider:

1. The types of problems relating to housingthat people have in practice;

2. How these problem areas break down into individual justifiable legal problemsand other non-legal problems;

3. The best way to respond to legalproblems and disputes includingconsideration of other methods of disputeresolution such as negotiation, mediationand so on;

4. For disputes that require judicialdetermination, the features of a suitableforum; and

5. The links between dispute resolution of legal problems and access to otherhousing and related services.

Annex DHousing Cases

33 Law Commission Report 28434 Law Commission Report 281

Printed in the UK for the Stationery Office limitedon behalf of the Controller of Her Majesty’s Stationery Office

170344 07/04

Comments on this White Paper are welcomeand should be sent to:

Miss Claire GrayAdministrative Justice DivisionDepartment for Constitutional AffairsSelborne House54-60 Victoria StreetLondonSW1E 6QW

Email: [email protected]

Representative groups are asked to give asummary of the people and organisationsthey represent when they respond.

The Department may wish to publishresponses to this White Paper in due course.Please ensure your response is markedclearly if you wish your response or nameto be kept confidential.

If you are replying by email, your consentoverrides any confidentiality disclaimerthat is generated by your organisation's ITsystem, unless you specifically include arequest to the contrary in the main text ofyour submission to us.

Confidential responses will be included in anystatistical summary of numbers of commentsreceived and views expressed.

Comments on this White Paper

Documents

Transforming Public Services: Complaints, Redress …webarchive.nationalarchives.gov.uk/+/http:/ · enable the individual decision-makers to ... 1.12 In May 2000 the then Lord Chancellor,